IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130607

Docket: 44885

Registry:
Vernon

Between:

Marie
Eleanor Dakin

Plaintiff

And

Patrick
Roth, Rory Valecourt
and Matthew Schiffman

Defendants

– and –

Docket: 45096

Registry:
Vernon

Between:

Marie
Eleanor Dakin

Plaintiff

And

Patricia
Kate Butt, Cariboo Collision Repairs Ltd.
and Matthew Schiffman

Defendants

– and –

Docket: 48939

Registry:
Vernon

Between:

Marie Eleanor
Dakin

Plaintiff

And

Ja’elle Leite and
Wolseley Industrial Products Group Inc.
Wolseley Groupe de Produits Industriels Inc.

Defendants

Before:
Master R.W. McDiarmid

Reasons for Judgment

[1]            
This is an appointment to assess the bills of costs of the plaintiff
following a five-day trial before Mr. Justice Cole. In reasons for judgment
cited at Dakin v. Roth, 2013 BCSC 8, the plaintiff was awarded
$108,000.00. The order confirmed she is awarded her costs.

[2]            
The background facts are set out in paras. 1 and 2 of Cole J.’s reasons
for judgment:

[1] This is a personal injury claim arising out of three
separate motor vehicle accidents in which the plaintiff was a passenger. The
position of the defendants is that although liability is admitted, the
plaintiff is not a credible witness and has failed to mitigate her damages, and
therefore is only entitled to a modest award.

[2] The plaintiff was 27
years of age at the date of trial. The first motor vehicle accident took place
on September 29, 2007 ("First Accident") in the Vancouver area, the
second accident was on November 28, 2007 in the Vancouver area ("Second
Accident"), and the third accident took place on March 1, 2011 in Fort St.
John ("Third Accident").

[3]            
The plaintiff commenced separate actions in respect of each of the three
motor vehicle accidents. On April 1, 2011, by consent, all actions were ordered
to be tried at the same time.

[4]            
The relevant legal principles are well settled.

[5]            
Rule 14-1 of the Supreme Court Civil Rules [Civil Rules]
sets out the procedure for assessing party/party costs. They must be assessed
in accordance with Appendix B, apart from circumstances set out in Rule
14-1(1), none of which are applicable.

[6]            
In accordance with Rule 14-1(2) and (5) of the Civil Rules, on an
assessment of party/party costs under Appendix B, a registrar must allow those
fees under Appendix B that were proper or reasonably necessary to conduct the
proceeding, and must determine which disbursements have been necessarily or
properly incurred in the conduct of the proceeding and allow a reasonable amount
for those disbursements.

[7]            
Appendix B, s. 7, is also applicable to this assessment, given that
three proceedings have, by order, been tried at the same time and no order has
been made as to apportionment of costs. Accordingly, 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]            
The plaintiff provided the court with six authorities which I will
summarize briefly as follows:

a)    Van Daele v.
Van Daele, [1984] B.C.J. No. 1050, 56 B.C.L.R. 183, a decision of Proudfoot
J., as she then was, on appeal of a registrar’s decision on a taxation. This is
a case in which the issue was whether or not expert evidence commissioned by
the plaintiff (appraisal evidence evaluating shares) should be allowed or
should be disallowed on the basis that the expert evidence was useless,
unnecessary, and extravagant. Proudfoot J., noting that the law with respect to
valuation dates was not settled, opined that it was necessary for prudent
counsel to be prepared with evidence of valuation at the potential valuation
dates, and that such a disbursement would not be considered extravagant in the
circumstances of the case before Her Ladyship;

b)   
Mathwig v. Bachmaier, [1990] B.C.J. No. 2544, 51 B.C.L.R. (2d)
389. Macfarlane J.A. for the court stated:

…Secondly, the question which the Registrar must decide is
whether the disbursement has been "necessarily or properly incurred".

The focus is on the date the disbursement was incurred not
on the conduct of the party thereafter.

 In this case the Registrar was bound to allow the
disbursements if they were necessary or proper at the time the reports were
ordered. There is no issue on that score.

c) Cook v. Lawson Oates Chrysler Ltd.,
[1991] B.C.J. No. 3534. This decision, by Cowan J., discusses the proper
approach to be utilized by an assessment officer when assessing multiple bills
of costs where the party taxing such bills appears by the same counsel in each
action. Cowan J. writes in the penultimate paragraph of the decision:

After doing so, 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. It must be left to the
discretion of the registrar concerned to deal with the taxation depending on
the facts in each case.

d) Milne v. Clarke, 2010 BCSC 317
provided guidance with respect to interest. At para. 9 of the decision, Mr.
Justice Burnyeat writes:

[9] The law in British Columbia is that interest
charged by a provider of services where the disbursement has been paid by
counsel for a party is recoverable as is the disbursement. The interest charge
flows from the necessity of the litigation. If the disbursement itself can be
assessed as an appropriate disbursement, so also can the interest owing as a
result of the failure or inability of a party to pay for the service provided.
In order to obtain the M.R.I., it was necessary to pay not only the $975.00
cost but also the interest on any unpaid balances that were not paid
immediately. The cost plus interest was the cost of obtaining the M.R.I. The
claim for interest should have been allowed.

e) Chow v.
Nguyen, 2012 BCSC 729, a decision of mine, dealt with disbursements, the
onus of proof in seeking reimbursement for disbursements, the reasonableness of
the amounts claimed and, most particularly, how to properly assess claims for
experts’ charges;

f) Parent v. Lohia, 2012 BCSC
1677, a further decision of mine, dealt with an assessment of costs where the
costs of two or more actions are being assessed. The decision also commented on
appropriate principles with respect to assessment of disbursements.

[9]            
The defendants also provided six authorities as follows:

a)    Parent,
addressed in the preceding paragraph;

b)    MacKenzie v.
Rogalasky, 2012 BCSC 156, a decision of Registrar Sainty which dealt with
interest on an amount loaned to the plaintiff to fund disbursements. In that
decision, at para. 38, Registrar Sainty disallowed the plaintiff’s claim for
interest;

c)    
Hall v. Coad, 2002 BCSC 720, wherein District Registrar Bouck, as
she then was, set out some guidelines, including, at para. 13 of her decision,
the following:

11.       In determining appropriate fees
for medical experts, the BCMA tariff may be used as a guideline, but the
Registrar is not bound by the tariff.

d) Mohr v. Dent, [1983] B.C.J. No.
323, where, at para. 62-65, Mr. Justice Hutchison gave some guidance with
respect to assessment of cancellation fees. He wrote:

[62] In my view the B.C.M.A. fee schedule is a guide
to the medical profession, and has nothing to do with what is a Proper fee for
an unsuccessful defendant to pay. There is an obligation on the plaintiff’s
solicitor to adduce from the doctor in question evidence that he was not able
to mitigate his lost working hours (see Rule 57(4)).

[63] If the doctor and his patient make an
arrangement that the doctor is to be paid $1400.00 regardless of whether or not
he appears in court if the time is cancelled with only a week’s notice, the
doctor nay then feel free, at the expense of the plaintiff, to spend the day in
recreational activities rather than re-booking patients. Should the defendant
indemnify the plaintiff in such circumstances?

[64] It must be borne in mind that this action arose
out of motor vehicle accident. The defendant, driver of a motor vehicle in his
Province, is required to be insured by the Insurance Corporation of British
Columbia. In effect, the expenses paid by the defendant in a case such as this
are expenses paid by all of the driving citizens in British Columbia. Just as
all taxpayers suffer if exorbitant write-offs for income tax are allowed by
Revenue Canada, so all drivers suffer when exorbitant medical fees are paid by
I.C.B.C.

[65] For that reason before awarding fees for time
lost because of a short cancellation of a trial, the taxing officer should
satisfy himself that there was in fact a loss suffered by the doctor which
justifies him in rendering a fee payable by the defendant. Such a loss is more
likely to be suffered by a less expert doctor than a specialist, since the
neophyte is less likely to have other patients knocking at his door readily available
to be attended to.

e) Summers
v. McGinnis, 2005 BCSC 523, a decision of District Registrar Bouck, as she
then was, which also deals with assessment of cancellation fees;

f) Bell v. Fantini, [1981] B.C.J.
No. 1268, 32 B.C.L.R. 322, where at para. 25, Mr. Justice Legg writes:

[25] Where the Registrar
is faced with a party seeking to tax the expenses of a large number of experts,
as he was on these taxations, he was entitled to disallow that portion of those
expenses which, in his discretion, was unnecessary or not proper. For instance,
the Registrar was entitled to disallow the expenses of more than two experts in
the same specialty for the same litigant, unless some satisfactory explanation
from the taxing party persuaded him that the expense of employing more than two
experts in the same specialty was justified. Further, where an expert’s report
had not been allowed into evidence at trial because the expert did not attend
for cross-examination, the Registrar was entitled to disallow the expense of
that expert in the absence of a satisfactory explanation for the non-attendance
of the witness. …

THE EVIDENCE

[10]        
The evidence in support of the plaintiff’s bills was in part provided by
the first affidavit of Max Russmann. He was one of two counsel for the plaintiff.
He deposes as follows:

5.         This
case involved some complexity as the Plaintiff had, prior to the First
Accident, been involved in two single vehicle accidents where she suffered
minor injuries similar in nature to the injuries she sustained in the First
Accident, Second Accident and Third Accident. The case was also complex as the
injuries the Plaintiff sustained in the First Accident were to an extent
exacerbated by the Second Accident and those sustained in the First and Second
Accident were in turn exacerbated by the Third Accident. Finally, the case was
complex simply because of the fact that it involved three separate accidents
which occurred over a period of approximately three and a half years, resulting
in the need to review more evidence and to prepare for more evidence at trial.

6.         The
Plaintiff tendered the evidence of three experts: Ms. Sheila Branscombe, an
occupational therapist who gave evidence regarding the functional capacity
evaluation and cost of care reports she prepared; Dr. Giantomaso, a specialist
in physical medicine and rehabilitation who did not give evidence at trial
except for filing his reports including a rebuttal report to that of the
Defendant’s physical medicine and rehabilitation expert, Dr. Laidlow (who
testified at trial); and Mr. Robert Carson [an] economist whose report provided
present values of the costs of future care as set out by Ms. Branscombe.

7.         Mr.
Tim Cooper, a kinesiologist, also testified as to the Plaintiff’s participation
in a rehabilitation program and the exercises he instructed her to do, as
recommended by the Plaintiff’s physiotherapist.

8.         The
Plaintiff also attended an independent medical examination by Dr. Maryana Apel,
a physiatrist, March 24, 2009, after the First Accident and after the Second Accident;
while the report of Dr. Apel was not tendered at trial, it was used by Dr.
Giantomaso to assess the condition of the Plaintiff and is noted in Dr.
Giantomaso’s report of March 23, 2012.

9.         While
liability was admitted for each of the First, Second and Third Accidents, the
Defendants argued that the Plaintiff was not credible and that she failed to
mitigate her losses. In addition, the Defendants tendered the report of Mr.
Arlana Taylor, a physiotherapist, as a rebuttal to Ms. Branscombe’s report; following
cross-examination of Ms. Taylor, the rebuttal report was rejected as she was
found to have been an advocate. In short, this trial involved an additional
degree of complexity as a result of the arguments made regarding the
admissibility of the Ms. Taylor’s report.

11.       The
Defendants initially advised the Plaintiff that they required one of the
Plaintiff’s experts, Dr. Giantomaso, a physiatrist, to attend for the purposes
of cross-examination. Dr. Giantomaso was scheduled to appear at the trial of these
matters on November 1, 2012 via videoconference from Calgary. Counsel for the
Defendants advised our office that Dr. Giantomaso’s attendance was no longer
required on October 31, 2012 and, in turn, our office advised Dr. Giantomaso’s
office of this fact on the morning of November 1, 2012.

12.       As is set out on page 7 of
Exhibit “C” attached hereto, the Bills of Costs of the Plaintiff, the Plaintiff
claims the sum of $6,300.00 for the cancellation fees claimed by Dr.
Giantomaso’s office, Cira Medical Services. Now produced and shown to me and
marked as Exhibit “E” to this my Affidavit is a copy of a letter from
Dr. Giantomaso dated February 6, 2013, which provides an explanation for the
basis of the $6,300 cancellation fee.

[11]        
In paragraph 13 of his affidavit, the deponent, from pages 4 to 18, gives
evidence with respect to the tariff items claimed on the three bills of costs.
Although not reproduced in these reasons, I have read what Mr. Russmann deposes
are “my comments regarding the Bills of Costs”, and considered them in reaching
my decision with respect to the tariff items.

[12]        
On the last page of his 19-page affidavit, Mr. Russmann deposes how
disbursements are tracked, confirms that both printed pages and photocopies are
recorded at the rate of 25 cents per page, and references as exhibits to his
affidavit the plaintiff’s book of expert reports, the plaintiff’s book of
documents, the plaintiff’s book of authorities, and copies of the invoices for
the disbursements claimed.

[13]        
The plaintiff also relies on a second affidavit of Max Russmann, which
corrects a significant error in his first affidavit with respect to the total
number of pages copied and printed.

[14]        
Finally, the plaintiff relies on the second affidavit of Amber Thompson
sworn January 24, 2013 and filed January 25, 2013. It provides further evidence
with respect to printing and photocopies, and also contains at paragraph 5, the
following evidence:

5.         Dr. Giantomaso was scheduled to
appear at the Trial of these matters on November 1, 2012 via videoconference
from Calgary. I am informed by Mr. Dick and verily believe that Dr.
Giantomaso’s attendance at Trial was required by counsel for the Defendants for
the purposes of cross-examination. Dr. Giantomaso’s attendance was no longer
required and therefore his attendance was cancelled on November 1, 2012. I am
informed by Mr. Dick and verily believe that counsel for the Defendants advised
that Dr. Giantomaso’s attendance would no longer be required at Trial on
October 31, 2012. Attached hereto and marked as Exhibit “A” to this my
Affidavit is a true copy of email correspondence from Mr. Dick advising that
Dr. Giantomaso was no longer required at Trial. Attached hereto and marked as
Exhibit “B” to this my Affidavit is a true copy of an email exchange between
myself and Dr. Giantomaso’s office with respect to this trial attendance
cancellation on November 1, 2012. Attached hereto and marked as Exhibit “C” to
this my Affidavit is a copy of the cancellation invoice of Dr. Giantomaso.

[15]        
Exhibit “D” to the Thompson affidavit is deposed by her to be a true
copy of the trial policies of Cira Medical Services (“Cira”), where Dr.
Giantomaso is employed. That document sets out minimum and maximum fees, and
sets out trial cancellation policies. The relevant portions are as follows:

Video deposition or testimony by video link in the region in
which the doctors’ reside is $4800.

…

 At 5 business days prior to
the scheduled court attendance, the full fee as noted above, will apply.

[16]        
The defendants’ evidence is contained in affidavit #3 of Joanne Beatty,
a paralegal at the law firm representing the defendants. It sets out evidence
with respect to the duration of the single examination for discovery, document
production, and similar to the evidence of Mr. Russmann, comments on various
tariff items. In addition, details of several of the disbursements claimed by
the plaintiff are referenced with appropriate exhibits appended. The British Columbia
Medical Association (“BCMA”) fee guide is appended, and the deponent has done a
calculation of what would be allowable if BCMA fees were deemed applicable.

[17]        
Paragraphs 29 to 32 of the Beatty affidavit are as follows:

29.       The following experts were retained by the
Plaintiff:

a.         Dr. Maryana Apel;

b.         Dr. T. Giantomaso;

c.         Sheila Branscombe; and

d.         Robert Carson

30.       Dr.
Apel and Dr. Giantomaso are both experienced physiatrists and have the same
area of expertise.

31.       Dr.
Apel’s report was not put into evidence at trial nor did she attend to give
evidence at trial.

32.       Robert Carson did not attend to
give evidence at trial.

[18]        
Similar to what was deposed to by Mr. Russmann in paragraph 13 of his
affidavit (see para. 11 above), the Beatty affidavit contains the following
heading: “TARIFF ITEMS CLAIMED ON ALL THREE ACTIONS”, and then in paragraphs 33
to 44 deposes to evidence with respect to the tariff items claimed on the three
bills of costs. Though not reproduced in these reasons, I have read what Joanne
Beatty deposes in these paragraphs and considered them in reaching my decision
with respect to the tariff items.

[19]        
In the Beatty affidavit there is a heading: “DISBURSEMENTS” and then
subheadings setting out objections to various disbursement items followed by
paragraphs containing evidence relating to the disbursement items which are
disputed. I have considered all of that evidence in reaching my decision with
respect to disbursements.

[20]        
In terms of dollar value, the largest area where there is a dispute with
respect to disbursements has to do with the fees paid to Dr. Giantomaso,
including in particular, the cancellation fee paid. I have reviewed the
evidence set out in the affidavits with respect to all of the disputed
disbursements including in particular the disbursements billed by Dr.
Giantomaso.

[21]        
I am satisfied that based on the evidence provided by Max Russmann, the
plaintiff has proven payment of the disbursements claimed or, alternatively,
with respect to items such as photocopies, has proven that the printing and
photocopies claimed were in fact done. Prima facie, the strict proof for
the disbursements claimed has been provided. I still need to determine which
disbursements have been necessarily or properly incurred and allow a reasonable
amount for those disbursements.

TARIFF ITEMS

[22]        
It is important to keep in mind the wording repeated in Appendix B in
the description for tariff items 1, 2, 3, and 6. The description for each of
these items contains the words “for which provision is not made elsewhere in
this tariff”. Registrars must to be careful to separate out, for example,
activities which are allowed under item 17, and, therefore, cannot justify
additional units under item 2. In reaching my decision on the appropriate number
of units to be allowed on each bill of costs under each item, I have kept this
wording in mind.

[23]        
Counsel for the defendants submitted that I must also consider the
proportionality provisions of the Civil Rules set out in particular in Rule
1-3(2)(a). Counsel for the defendant argues that the claimed costs and
disbursements total 72% of the amount awarded at trial and says that is
disproportionate.

[24]        
In assessing the three bills of costs, I refer to action 44885 as
“Roth”, action 45096 as “Butt” and action 48939 as “Leite”.

[25]        
In applying the legal principles, authorities, and applicable provisions
of the Civil Rules, including the proportionality provisions, I have
concluded that apart from item 6, there is a significant overlap between those
fees under Appendix B that were proper or reasonably necessary to conduct Dankin
v. Roth, and those fees under Appendix B that were proper or reasonably
necessary to conduct Dakin v. Butt. Those accidents took place
approximately two months apart in the fall of 2007.

Tariff Item 1

[26]        
The plaintiff claims 5 units on each bill of costs, whereas the
defendant says that there should be a total of 6 units. I allow 5 units on the
Roth bill of costs, 1 unit on Butt and 2 units on Leite.

Tariff Item 2

[27]        
The plaintiff’s counsel claims 15 units on each bill of costs. Defence
counsel submits that there should be a total of 13 units. I allow 10 units on
Roth, 2 units on Butt and 5 units on Leite.

Tariff Item 3

[28]        
The plaintiff’s counsel submits there should be 5 units on each item.
The evidence is that following the trial of these matters, it was necessary for
plaintiff’s counsel to follow up with defence counsel to agree on the terms of
the order and to have the defendant’s counsel execute that order. There was one
order. The further evidence is that counsel for the defendants received the
draft order after trial on January 14, 2013, and returned it endorsed to
counsel for the plaintiff on January 24, 2013. The time between those two dates
was required to deal with and obtain instructions regarding a discrepancy for
the reasons of judgment which were silent with respect to costs and the costs
included in the order. Obviously Rule 14-1(9) provides that the costs are
awarded to the successful party. It is apparent that the defendants required
instructions to agree to this, but that is not something which would entitle
the plaintiff to the number of units claimed. As well, a plaintiff could have
claimed under tariff item 41, but has not done so. The order must be entered in
each court file. In this case, there was one order referencing all three court
files. If the plaintiff had claimed under item 41 I would have allowed 1 unit
in each action for that item, 1 unit under item 3 in Roth, and 0 units under
item 3 in Butt and Leite. In the circumstances, I allow 2 units for the Roth
file and 1 unit for Butt and Leite.

Tariff Item 6

[29]        
The plaintiff has claimed 5 units for each action. The defendant argues
that a total of 4 units, 2 for Roth, 1 for Butt and 1 for Leite ought to be
allowed. This is one of the tariff items where the usual number of units for
drafting and issuing the pleadings necessary to commence a claim ought to be
allowed in each action. In reviewing the pleadings, they are in large part “boilerplate”
but part of that is the nature of necessary pleadings in motor vehicle actions.
I allow 3 units in each of the three actions, so 3 units in Roth, 3 units in
Butt and 3 units in Leite.

Tariff Item 10(a)

[30]        
The plaintiff is claiming 10 units in each action which is the maximum.
This was not a difficult document case. Exhibit “D” to the Beatty affidavit
sets out a list of documents and two amended lists of documents in Roth and
Butt, and a list of documents and an amended list of documents in Leite.
Amended lists update the initial list in all cases. There is considerable
overlap in the documents referenced in the various lists, especially with
respect to medical reports and records which are largely documents disclosed by
the plaintiff. I allow 3 units in Roth, 3 units in Butt and 3 units in Leite.

Tariff Item 11(a)

[31]        
In submissions, the defendants argued that the plaintiff’s affidavit
suggests that the plaintiff’s claim under this item is because some additional
disclosure was compelled by the court following defence applications for
disclosure which was brought separately in each action. The applications were
resolved by an order containing a provision that no costs are awarded to either
party. There is no allowance by me under this item for any of the preparation
or attendance at court with respect to the document disclosure application. In
determining the appropriate amounts, I have reviewed the various document lists
and the documents disclosed in them, and made my determination based on the
evidence before me. The plaintiff has claimed 10 units on each bill of costs
for a total of 30 units. I allow 7 units in Roth, 1 unit in Butt and 4 units in
Leite.

Tariff Item 17

[32]        
Exhibit “F” to the Max Russmann affidavit was the plaintiff’s book of
expert reports. The report at tab 1 in that book is a report from Dr. T.
Giantomaso, an expert in physical medicine in rehabilitation. On page 3 of his
report under the heading “History of Present Complainant” Dr. Giantomaso sets
out the plaintiff’s history relating to motor vehicle accidents on September
29, 2007, November 28, 2007 and March 1, 2011. The functional capacity
evaluation is dated following all three accidents, referencing an assessment
which took place April 12 and 13, 2012; the report itself is dated May 18,
2012. Robert Carson’s report is dated June 29, 2012. Dr. Giantomaso’s report
references a report by Dr. Apel dated March 24, 2009, which “notes the history
of the September 29, 2007 and November 28, 2007 motor vehicle collisions”.

[33]        
It is appropriate for me to allow fees under this heading. Based on the
fact that the experts dealt with the sequelae from all three accidents, the
allowable range is from 1 to 10 units in total. I am mindful that the plaintiff
may have needed to consider the contribution each accident made to her claim. A
total of 7 units, allocated 5 units to Roth and 1 unit to each of the other two
bills of costs are the fees that are proper and reasonably necessary to conduct
the proceeding.

Tariff Item 18

[34]        
The evidence of Mr. Russmann is that four lay witnesses had to be
interviewed and prepared to give evidence at the trial. Although the description
for tariff item 18 does not contain the words “for which provision is not made
elsewhere in this tariff”, this item does not encompass fees for preparation
for trial; that is encompassed under tariff item 34. There is evidence that the
witnesses had to be interviewed. I find that a total of 4 units is the proper
allowance for fees that are proper or reasonably necessary to conduct the
proceeding, and allocate those 4 units to the Roth action.

Tariff Items 19 and 20 – Preparation and Attendance for Examination for
Discovery

[35]        
The examination for discovery was completed in less than a day (the
evidence indicates 2.7 hours). I am guided by Appendix B, s. 4(1) and (3).

[36]        
In Cook, an appeal from a taxation of costs by Registrar Dunn,
Cowan J. writes as follows:

Registrar Dunn awarded full
units, based on the half-day rule, to each of the three actions herein for item
14(b) [now 19(b)]. As well she awarded full units for only one attendance
pursuant to Item 15(b) [now item 20(b)] to be claimed in only one of the
actions without apportioning the units for attendance to all three actions.

[37]        
Cowan J. dismissed the appeal from Registrar Dunn’s taxation.

[38]        
I propose to follow the same approach as Registrar Dunn, but take into
account the close proximity between the first and second actions and also take
into account the proportionality provisions of the Civil Rules. Under
item 19(b), I allow 3 units for Roth, 1.5 units for Butt and 3 units for Leite.
I allow a total of 5 units under 20(b) apportioned 3 units to Roth, 1 unit to
Butt and 1 unit to Leite.

Tariff Item 22(b)

[39]        
The plaintiff claims 5 units for an opposed application. That
application, before me on April 17, 2012, specifically provided “no costs to
either party” in respect to this application. No units are awarded on any of
the bills of costs with respect to this item.

Tariff Item 31 and 32

[40]        
These items relate to the preparation for and attendance at a trial
management conference. One trial brief was prepared for a trial management
conference which was less than half a day. Similar to the approach to be taken
with respect to examinations for discovery, I allow a total of 3 units under
item 31 and 3 units under item 32, apportioned 1 unit under each item for each
bill of costs.

Tariff Items 34, 35 and 40

[41]        
No issue has been taken here. I allow 25 units under item 34, 50 items
under item 35 and 1 unit under item 40, all on the bill of costs in the Roth
action. The plaintiff claimed 1 unit under item 40 in the Butt action and no
units in the Leite action. The matter was set down with all three actions heard
at the same time, so I do not allow the unit claimed in Butt.

Tariff Items 29 and 30

[42]        
No claim has been made under items 29 and 30 relating to preparation for
an attendance before me. The assessment of costs required two half days. The
plaintiff is entitled to 2 units under item 29 and 4 units under item 30 on the
Roth bill of costs.

DISBURSEMENTS

[43]        
The defendants object to several of the claimed disbursements.

[44]        
In paragraph 14 of his first affidavit, Mr. Russmann deposes:

14.       Now produced and shown to me and
marked Exhibit “I” but not attached to this my Affidavit but will be made
available at the taxation are copies of the invoices for the disbursements
incurred by our office in preparing for and prosecuting these three cases to
the trial. In my opinion, all of these expenses were necessary to properly
prosecute the claim to trial.

[45]        
I was not provided with exhibit I. In addition, in paragraph 4 of his
affidavit, Mr. Russmann deposes:

4.         Now produced and shown to me
and marked as Exhibit “A” to this my Affidavit is a copy of the Reasons
for Judgment of Mr. Justice Cole, dated January 7, 2013 (the “Reasons”). Now
produced and shown to me and marked as Exhibit “B” to this my Affidavit
is a copy of the Order After Trial. Costs were awarded to the Plaintiff at
Scale B. Now produced and shown to me and collectively marked as Exhibit “C”
to this my Affidavit is a copy of the three Bills of Costs of the Plaintiff
(one for each action) together with supporting documentation for the
disbursements claimed.

PHOTOCOPYING AND PRINTING

[46]        
The plaintiff claims 12,283 copies for both photocopies and printing in
the Roth action, 376 copies in the Butt action, and 1,002 copies in the Leite
action, all at 25 cents per page, not as set out in the bills of costs in Roth
and Butt, but as explained in Mr. Russmann’s second affidavit sworn May 3,
2013, provided to me at the hearing.

[47]        
The defendants point out a calculation error, but more importantly raise
two objections:

a)    The defendants
submit that some of the printing/photocopying relates to extra books required
for second counsel for the plaintiff, which is a luxury or a convenience, the
cost of which ought not to be borne by the defendants; and

b)   
The defendants submit that printing (in the sense of printing letters,
emails etc.) is a matter of normal overhead, inherently different from
photocopying, justifying a reduction in the account.

[48]        
The plaintiff has provided copies of its book of documents, book of
authorities, and book of expert reports. I have also reviewed the various lists
of documents.

[49]        
The evidence of Mr. Russmann in the two affidavits filed by him
satisfies me that the copies and printing related to the three actions were
properly tracked. I am satisfied that the claimed number of pages were
photocopied and/or printed. It seems to me that in the circumstances of these
three actions, tried at the same time, it was both proper and reasonably
necessary to have co-counsel, but that does not mean that the entire cost of
co-counsel ought to be borne by the defendants. Rule 14-1(5)(b) gives me the
discretion to allow a reasonable amount for disbursements, and I am satisfied
that some reduction should be made to account for the two sets of books for
counsel.

[50]        
There is little evidence before me to separate out what has been photocopied
and what has been printed (which would largely constitute overhead and not a
disbursement necessarily or properly incurred) in the conduct of the proceeding.
Claims for “printing” have been disallowed. However, it is apparent that a
significant number of photocopies were necessary and proper – see Mr. Russmann’s
affidavit, para. 13(r), (gg) and (vv).

[51]        
I allow 10,000 photocopies in the Roth action, which at 25 cents per
page is $2,500.00; 300 photocopies in the Butt action, which is $75; and 900 photocopies
in the Leite action, which is $225. I have allowed claimed pre-July 1, 2010,
photocopies as claimed on the bills of costs, and allowed the balance as
post-July 1, 2010 photocopies.

PART 7 WRITS

[52]        
While these claims may be appropriate in claims for costs against the
defendants in the Part 7 actions, they are not disbursements which have been
incurred in the conduct these three proceedings, and are disallowed.

ADMINISTRATION FEE AND TRUST ADMINISTRATION FEE

[53]        
Administration fees are not disbursements incurred in the conduct of
these three proceedings; they constitute part of the lawyers’ overhead and are
not allowed. One trust administration fee is allowed in the amount of $10.00 in
the Roth action.

DISBURSEMENT INTEREST

[54]        
There is no evidence to show that disbursement interest is something
which has actually been paid out. There are no details in the affidavit in
support of the claim. Interest paid to fund disbursements is in some
circumstances be allowable, such as in the circumstances set out in Milne,
at para. 9, where the interest charge flows from the necessity of the
litigation. No such evidence has been given here, and the claim is not allowed.

DR. GIANTOMASO’S ACCOUNTS, INCLUDING LATE CANCELLATION FEE:

[55]        
The evidence provided by the plaintiff to justify these accounts is
confusing. As set out by Mr. Justice Leg in Bell cited in para. 28 of my
decision (cited by both counsel) in Parent, if the expert’s bill as
originally submitted and paid does not contain sufficient detail as to what
work he actually and necessarily did, then further supporting material from
that expert is required. That further supporting material is exhibit 8 to Mr.
Russmann’s first affidavit. Exhibit 8 sets out an hourly rate of $500.00 per
hour.

[56]        
That letter satisfies me that, unlike the fact pattern in Mohr,
set out by Hutchison J. at paras. 63-65, I am satisfied that there was in fact
a loss suffered by the doctor which justifies him rendering a fee payable by
the defendant, especially given the circumstances here, where the defendants
required the attendance of Dr. Giantomaso for cross-examination, and only
advised counsel for the plaintiff that his attendance was no longer required on
October 31, 2012. This resulted in the plaintiff’s counsel advising the doctor
that his attendance was no longer required on the morning of November 1, 2012,
the date he was scheduled to appear (see Mr. Russmann’s first affidavit,
paragraph 11).

[57]        
However, the justification letter sets out an hourly rate of $500.00 per
hour.

[58]        
The letter also clarifies that extra fees were billed by Cira, Dr.
Giantomaso’s employer, who spent a significant amount of time liaising between
the doctor and counsel.

[59]        
I do not agree that the use of Cira in these circumstances is a luxury
and a convenience for counsel; on the contrary, it would appear to be a
necessary adjunct to properly arranging for the necessary consultation between
the physiatrist and counsel.

[60]        
I have considered the fact that the BCMA fee for an opinion letter is
$1,620.00. However, it is common for experts who are physicians to exceed the
BCMA fee, often significantly. The plaintiff needs the evidence, and is not
usually in much of a position to try to bargain with the expert to obtain a
lower fee.

[61]        
A further complication is what seems to me to be a significant
discrepancy between the evidence of Cira’s cancellation policy and what was
actually charged. The second Amber Thompson affidavit, exhibit C, sets out the
late cancellation fee of $6,300.00, plus HST. However, exhibit D to that
affidavit sets out that video deposition or testimony by video link in the
region in which the doctors reside is $4,800.00, and at five days prior to the
scheduled court attendance (and presumably any time within that five-day
period) the full fee will apply.

[62]        
The matter is further confused by Dr. Giantomaso confirming a $500.00
per hour rate as his minimum fee per hour, justifying one and one-half hours of
preparation time with respect to a literature search, and then obviously making
a multiplication error by coming up with a fee of $1,500.00, when the fee
should have been, based on his own letter, $750.00.

[63]        
The letter also would appear to confirm that the cancellation fee
included the one and one-half hours of preparation time in regard to a
literature search.

[64]        
There are three separate claims relating to Dr. Giantomaso’s reports
billed through Cira. They total $12,600.00. In general, those services were
necessarily incurred, but not all of the disbursements were properly incurred
in the sense that some checking should have been done to ensure that the
billings corresponded to the hours expended, hourly rate, and cancellation
quotes. A reasonable amount for those disbursements is $9,600.00, and I allow
that amount, which technically should be apportioned to all three actions, but
which, for convenience (properly so), is claimed on the Roth bill of costs, and
so is allowed at $9,600.00 for the three claims.

DR. APEL’S ACCOUNTS AND INTAKE FORM FEE CLAIM:

[65]        
I have reviewed the arguments of the defendants which point out that I
am entitled to use my discretion to disallow a portion of expenses which are
unnecessary or not proper, including in particular disallowing the expenses of
more than two experts in the same speciality for the same litigant unless some
satisfactory explanation from a taxing party persuades me that the expense is
justified.

[66]        
Dr. Apel’s report was not used at trial. It was, however, referred to on
page 8 of 15 of Dr. Giantomaso’s report. The reference demonstrated to me that
Dr. Giantomaso had utilized Dr. Apel’s report; he referenced it again on page
10 of 15 of his report. As set out in para. 20 of my decision in Chow,
at para. 20, citing Fairchild v. Vancouver Coastal Health Authority,
2011 BCSC 616, I write:

…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.

[67]        
On the other hand, Dr. Apel was not called, although her report was of
assistance to Dr. Giantomaso.

[68]        
 I find that the disbursement for an independent medical examination
(“IME”) by Dr. Apel was properly incurred, but keeping in mind proportionality,
a reasonable amount for that disbursement is the BCMA fee which is set out in
exhibit J to the Joanne Beatty affidavit #3, referenced A00073 in the amount of
$1,620.00, and I allow the Dr. Apel report fee in that amount.

[69]        
In addition, Dr. Apel charges an intake form. The plaintiff has shown
that it was paid and it is allowed at $25.00.

MERIDIAN REHAB./BRANSCOMBE ACCOUNTS

[70]        
The plaintiff claims $3,780.00 for the report and $595.00 for a rebuttal
report. In his 16-page judgment, Mr. Justice Cole deals with the physiotherapy
evidence in just under two pages. It is apparent that he accepted the evidence
of Sheila Branscombe and rejected the critical statements made by a
physiotherapist who provided a rebuttal report and gave evidence at trial on
behalf of the defendants.

[71]        
I conclude from this that Sheila Branscombe carefully prepared her
evidence and, although no rebuttal report was entered, prepared herself for
cross-examination and prepared herself to contest conclusions of the
defendants’ expert where that expert was critical of Ms. Branscombe. Ms.
Taylor, the physiotherapist called on behalf of the defendants, was
characterized by Justice Cole as an advocate, and her evidence was rejected.

[72]        
When witnesses are called upon to testify, especially expert witnesses,
they commit to the time and presumably do not book alternative appointments. A
court appearance was based on $1,000.00 a day rate, billed for half a day. I
allow the $500.00 for her court attendance.

[73]        
I am also satisfied that the time expended by Ms. Branscombe was
necessary and was properly incurred in the conduct of the proceedings.

[74]        
However, when a report is questioned there is an obligation for
justification of the charge; in this case, defence counsel points out that in
her own report she writes “OT services are $100.00 per hour”. There is no
justification for an increased rate for providing the expert opinions she gave.

[75]        
I allow 27 hours at $100.00 per hour or $2,700.00 for the report, and
$425.00 for the time expended in preparing a rebuttal report. I appreciate that
report was not utilized in court, but significant preparation over and above
the two hours needed for preparing, just before attendance at court is
justified.

[76]        
The physiotherapist’s final account for court preparation and attendance
is allowed at two hours at $100.00 per hour for $200.00, and half a day at
$500.00 as noted for a total of $700.00.

CONDUCT MONEY TO ATTEND IME WITH DR. APEL

[77]        
The plaintiff claims $250.00 for conduct money. The defendant has
reviewed the affidavits, and notes that $27.96, plus tax, is attributable to
four alcoholic beverages, and notes that tax is included and submits that
because Dr. Apel’s report was not provided, those expenses should not be
allowed, or, alternatively, should be allowed at $160.00 or “around $170.00.”
The objections with respect to tax and the alcoholic beverages are well
founded. The conduct money is allowed at $170.00.

LONG DISTANCE CHARGES AND FAX CHARGE CLAIMS

[78]        
The defendant submits that long distance charges should form part of
overhead of a law firm and should not be borne by the defendant in any event,
and argues that there is a lack of evidence. The evidence is that these long
distance charges were incurred in the conduct of the litigation. That evidence
is found in paragraph 14 of Mr. Russmann’s first affidavit.

[79]        
The evidence is that the plaintiff was resident in Fort St. John. Her
counsel practiced in Vernon, experts were retained in Calgary and Vancouver,
there were over five years between the date of the first accident and the
commencement of the trial, and in the circumstances, the long distance
telephone charges and fax charges are proven and allowed as claimed.

COURIER FEE CLAIMS

[80]        
Although the Max Russmann affidavit, paragraph 14, previously cited,
does provide prima facie proof of disbursements, the defendant submits
there is no information in the affidavit about the rates charged or why a
courier was being utilized. There is merit to the defendants’ objections;
however, experience shows that in cases such as this it is common for necessary
and proper utilization of courier services from time to time. I am satisfied
that the courier charges were incurred, but the specific reasons for them have
not been provided. They total $132.20; I allow $70.00 on Roth, broken down to
$45.00 GST taxable and $25.00 HST taxable.

POSTAGE CLAIMS AND SCANNING FEE CLAIMS

[81]        
There is no information in the affidavits in support of either claim,
and no explanation why postage would not be an item of office overhead, nor any
information as to what the scanning fees might relate to. These claims are not
allowed.

OUT-SOURCED PHOTOCOPY CLAIMS

[82]        
There is no explanation offered as to why there should be out-sourced
photocopying, claimed in Roth at $44.25 and $356.26 under two headings. As
noted above, I have in these reasons allowed for 11,200 photocopies. These
claims have not been proven and are not allowed.

BC ONLINE FEES CLAIMS

[83]        
The defendants submit that there is no explanation in the materials as
to why several of these expenses were incurred, or how they were necessary and
proper. In particular, there is objection to a filing charge, service charge,
an undescribed online charge of $45.00, another filing charge, an ICBC Freedom
of Information Act request, another service charge, and an electronic
search. There is no disagreement with respect to claims for a motor vehicle
search or corporate search.

[84]        
The filing and service charges are self-explanatory, and in this day and
age are appropriately incurred.

[85]        
On the Roth bill of costs, the three BC Online charges ($14, $14 and $3)
are allowed. On the Butt bill of costs, the undescribed online charge in the
amount of $45.00 is not allowed; the company search, motor vehicle search and
service charge of $7, $15 and $1.50 respectively are allowed. The online filing
charge of $14.00 is allowed. The online electronic search has had no
explanation offered and it is not allowed. On the Leite bill of costs, the
company search, motor vehicle search and service charge are allowed. There is
no evidence about why the Freedom of Information request was made; that
fee is not allowed.

J.C. WORDASSIST

[86]        
The J.C. WordAssist account has been provided, and a review of the court
file shows that the transcript of cross-examination of Dr. Laidlow was prepared
by J.C. WordAssist. Although there is no specific explanation in the
plaintiff’s affidavit, the differing opinions offered by the doctors were
largely resolved in favour of Dr. Giantomaso’s report in that in para. 47 of
the decision, Mr. Justice Cole prefers his report. In the circumstances, the
transcript cost of $282.75 was properly incurred and I allow it in full.

INTERIOR HEALTH REPORT CLAIMS

[87]        
There are two invoices from Interior Health, one for researching and
compiling employee information and providing photocopies, and a second for a
search fee, photocopying, shipping and handling.

[88]        
Mr. Justice Cole deals with the plaintiff’s employment at paras. 12-13
of his decision. Mr. Russmann deposes that these bills, which on their face
relate to the plaintiff, were paid. Gathering employment information is both
necessary and proper, and the charges incurred are reasonable and are allowed
as claimed.

FLIGHT EXPENSE – $199.43 – TO ATTEND IME WITH DR. APEL

[89]        
The defendants argue that because Dr. Apel’s report was not utilized at
trial, the travel expenses and conduct money claimed should not be allowed.

[90]        
Dr. Apel’s report was used by Dr. Giantomaso. The disbursement was
properly incurred and was necessary, is in a reasonable amount, and is allowed
as claimed.

FLIGHTS AND CONDUCT MONEY FOR OT ASSESSMENT

[91]        
The plaintiff was residing in Fort St. John. The assessment was
performed in the Okanagan Valley where the expert resides. The defendants argue:

… had the assessment been
performed in the community of Fort St. John, there would be no flight expense
and there would be no conduct money expense.

[92]        
There would, of course, have been an expense for flying the OT to Vernon
for trial, which would likely be several times as much as is being claimed.

[93]        
Utilizing an expert located close to the location of the trial is one
proper way to conduct the proceeding. The amount claimed, including the amount
of conduct money, is allowed as claimed.

[94]        
The defendants submit that convenience is not a reason that makes the
expense proper or necessary. In the circumstances here, where the plaintiff
resides in Fort St. John and, where the trial and the expert are in the
Okanagan, convenience is a reason, and the expenses are properly borne by the
defendants.

[95]        
Although the specifics of how the plaintiff spent the conduct money are
not provided, apart from a cheque written to the plaintiff, attending an OT
assessment in the Okanagan required flying on the evening of April 11, from
Fort St. John to Prince George and then from Prince George to Kelowna, arriving
in Kelowna, according to page 58 of exhibit C to the Russmann affidavit, at
6:35 p.m. The return flight departed Kelowna to Vancouver at 12:40 p.m., and
then from Vancouver to Fort St. John, arriving in Fort St. John at 4:21 p.m. on
Friday, April 13, 2011. $150.05 is reasonable conduct money and is allowed as
claimed, as is the cost of the flight, supported by invoice, in the amount of
$992.24.

ASSOCIATED ECONOMIC CONSULTANTS

[96]        
The plaintiff claimed $675.00 for Associated Economic Consultants. That
report was in the plaintiff’s book of expert reports. The report sets out a
methodology for calculating cost of future care. Although the report is not
referenced in the reasons for judgment, the plaintiff was awarded $10,000.00 as
cost of future care. In oral submissions, defendants’ counsel said that the
report was not needed to do the mathematics, or alternatively submits that this
is a convenience expense which should not be borne by the defendants.

[97]        
It is easy with hindsight to second-guess what was done for trial
preparation. Although there are cases where judges are prepared to “do the
math” without a report, reasonably competent counsel often prefer to have an
evidentiary foundation for “the math,” and such a foundation is provided by
this report. It is a disbursement which is properly incurred and is a
reasonable amount, and is allowed as claimed.

CONDUCT MONEY TO ATTEND IME – TRAVEL EXPENSES – FLIGHTS AND HOTEL

[98]        
The plaintiff is claiming $267.14 for conduct money to attend an IME
with Dr. Giantomaso in Vancouver, as well as $934.25 for a return flight and
$107.99 for a hotel. No receipts are provided. The evidence is that the
plaintiff flew one-way and then drove back with her boyfriend. In submissions
(unsupported by affidavit, but not contradicted), it would appear that the
plaintiff’s boyfriend bought a motor vehicle in Vancouver and they both drove
back together. It is approximately 1250 kilometres from Vancouver to Fort St.
John by road. Schedule 3 permits 30 cents per kilometre as a mileage allowance,
which would amount to $375.00. Half of the return flight is $467.00. It was
necessary and proper for the plaintiff to attend an IME with Dr. Giantomaso. A
reasonable amount for the travel expenses and conduct money is a total of
$1,200.00, and I allow that amount in total in substitution of the three
amounts claimed.

BALANCE OF DISBURSEMENTS

[99]        
The defendants, in written submissions, set out that certain claims were
not disputed. They have been allowed as presented. If any issue about any of
them arises, counsel should address the issue through correspondence to the
Kelowna Supreme Court Scheduler.

SUMMARY

[100]     On Dakin,
I have allowed 129 units amounting to $14,190.00, plus $1,702.80 taxes for a total
of $15,892.80. Non-taxable disbursements are allowed at $408.00. GST taxable
disbursements are allowed at $2,966.00, plus 5% GST of $148.30 for a subtotal
of $3,114.30. HST taxable disbursements are allowed at $21,696.12, plus 12% HST
of $2,603.53 for a subtotal of $24,299.65. The total bill is allowed at
$43,714.75.

[101]     On Butt, I
have allowed 16.5 units amounting to $1,815.00, plus $217.80 taxes for a
subtotal of $2,032.80. Non-taxable disbursements are allowed at $408.00. GST
taxable disbursements are allowed at $58.70, plus 5% GST of $2.94 for a
subtotal of $61.64. HST taxable disbursements are allowed at $91.02, plus 12%
HST of $10.92 for a subtotal of $101.94. The total bill is allowed at $2,604.38.

[102]     On Leite,
I have allowed 25 units amounting to $2,750.00, plus $330.00 taxes for a
subtotal of $3,080.00. Non-taxable disbursements are allowed at $200.00.
Taxable disbursements are allowed at $278.10, plus 12% HST of $33.37 for a
subtotal of $311.47. The total bill is allowed at $3,591.47.

[103]     The three
bills as allowed total $49,910.60 at which $18,755.00 is for tariff items, with
the balance for disbursements and taxes. That is not a disproportionate
allowance given the amount involved and the issues determined in these actions.

[104]    
I have signed the three bills. Counsel should obtain copies from the
Vernon registry. If necessary, plaintiff’s counsel may submit certificates for
signature.

“Master R.W.
McDiarmid”

MASTER McDIARMID