IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130924

Docket: 44469

Registry:
Kamloops

Between:

Tammy Franzman

Plaintiff

And

Shelley Maureen
Munro and Dag Alfred Goddyn

Defendants

And

Insurance
Corporation of British Columbia

Third
Party

Before:
Master R.W. McDiarmid

Reasons for Judgment

[1]            
The background to this matter is set out in the affidavit of Joseph A.
Zak made July 12, 2013. In his affidavit, Mr. Zak deposes as follows:

1.         I am counsel for Tammy Franzman, the plaintiff in
this action, and as such have direct knowledge of the information deposed to in
this Affidavit.

A. The Claim

2.         This action was brought for the recovery of
damages for personal injury and loss suffered by the plaintiff as a result of a
head-on motor vehicle collision that occurred on October 16, 2008 on Westsyde
Road south of the hamlet of Black Pines near Kamloops, BC.

3.         In order to investigate the issue of liability,
establish the nature and extent of the plaintiff’s injuries, the resulting
financial consequences and the cost of future care, it was necessary to retain
and consult with a number of experts. Attached as Exhibit 1 is a summary
of the expert reports that were commissioned on behalf of the plaintiff as well
as on behalf of the defence. The reports are voluminous and copies will be made
available for the assessment.

B. Accident Circumstances

4.         At the location of the collision, Westsyde Road is
a paved two lane highway that runs in a north and south direction. The driving
lanes are separated by a single yellow centre line. The highway is flanked to
the east by a precipitous drop to the North Thompson River and to the west by a
long ditch. The posted speed limit is 80 kph.

5.         The plaintiff was driving her red 1999 Chevrolet
Venture van south to Kamloops for a medical appointment.

6.         The defendant, Shelley Maureen Munro (“Munro”),
was driving a white 1993 Ford Taurus (“Taurus”) north returning to her home
after driving her daughter and grandchildren to their home in Kamloops. The
Taurus was registered to Munro’s common-law husband, the defendant, Dag Alfred
Goddyn (“Goddyn”).

7.         The plaintiff had rounded a bend in the road when
she saw Munro driving toward her in the plaintiff’s lane of travel.

8.         The plaintiff attempted to avoid the collision by
swerving into the oncoming lane but in vain. At the last moment, Munro returned
to her lane with the collision occurring in the northbound lane.

C. The Action

10.       This action was commenced on June 29, 2010.

11.       On October 22, 2010, a Third Party Notice was filed
by the Insurance Corporation of British Columbia denying liability to indemnify
both Munro and Goddyn.

12.       On October 22, 2010, a Response to Civil Claim was
filed by ICBC denying liability for the collision and disputing the injuries
and loss suffered by the plaintiff.

13.       On February 15, 2013, Kevin Church, counsel for
Goddyn, filed a Response to Civil Claim also denying liability for the
collision and disputing the injuries and loss suffered by the plaintiff. Goddyn
further claimed that Munro did not have his consent to operate the Taurus.

14.       Munro remained unrepresented throughout the course
of this action.

15.       The trial of this proceeding was set to commence on
July 22, 2013 and was scheduled for 10 days for hearing.

16.       The matter proceeded to
mediation on May 1, 2013 and was settled at that time for $675,000.00 plus
costs to be negotiated or assessed. The parties have been unable to settle the
issue of costs.

[2]            
In his affidavit, Mr. Zak sets out his view of liability issues. He
deposes that it was apparent that Ms. Munro was under the influence of
narcotics at the time of the collision. His affidavit deposes that the Crown
proceeded with a prosecution under s. 249(3) of the Criminal Code (the “Code”)
for dangerous driving, and that at her examination for discovery, Ms. Munro
stated that she had pleaded guilty to a criminal charge in relation to the
motor vehicle collision.

[3]            
As set out in Mr. Zak’s affidavit at paragraphs 11 and 12, liability was
denied by the Insurance Corporation of British Columbia (“ICBC”). Liability is
often denied by ICBC in situations where there is a breach because to do
otherwise may compromise ICBC’s ability to collect from breached defendants.

[4]            
Many cases come before me on case planning conferences and trial
management conferences where defence counsel properly advises that liability is
“really not in issue,” but that is small comfort to competent plaintiff’s
counsel who must still prepare on the basis that the plaintiff will have to
establish liability.

[5]            
In this case, there were allegations of contributory negligence, the
collision having occurred in the defendant’s normal lane of travel.

[6]            
Paragraph 45 of Mr. Zak’s affidavit sets out the injuries as follows:

The plaintiff suffered a number of injuries in the accident
including the following:

(a)        severe
fracture of the right ankle joint involving both the right lower tibia and
fibula

(b)        facial
smash including nasal deformity and obstruction

(c)        soft
tissue and musculoskeletal injuries to the neck, shoulders, upper back and
right arm

(d)        lower
back pain

(e)        bilateral
knee contusions and pain

(f)         mild
traumatic brain injury

(g)        perceived
decline in mentation

(h)        headaches

(i)         sleep
disruption

(j)         depression

[7]            
The affidavit recounts three further surgical procedures in 2009 and
2010.

[8]            
At the commencement of the review of the plaintiff’s bill of costs, I
was advised that the defendant, Goddyn’s counsel had been served and advised
that he would not be attending and would take no position with respect to this
assessment. The defendant, Munro, never filed a response to the notice of civil
claim. She was not served with the appointment.

[9]            
In preparation for the assessment, counsel for the plaintiff and counsel
for the third party provided detailed and helpful summaries of their positions.
These were provided sufficiently in advance to enable the hearing to proceed
smoothly, and to enable both counsel to determine that with respect to the
tariff items, globally, there was a relatively small number of units in
dispute. At the commencement of the hearing, the parties agreed that 105 units
should be allowed for the tariff items.

DISBURSEMENTS

[10]        
In determining whether to allow disbursements, I was assisted by the materials
provided by Mr. Geekie. A useful summary of the principles guiding me is set
out in Dhillon v. Bowering, 2013 BCSC 1178, a decision of Registrar
Sainty, where at paras. 15-16 she writes:

[15]      The test for determining the recoverability of a
disbursement is set out in Van Daele v. Van Daele (1983), 56 B.C.L.R.
178 (C.A.), where Mr. Justice Macfarlane said 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.

[16]      In deciding these issues, a registrar has a wide
discretion. That discretion was explained in Bell v. Fantini (1981), 32
B.C.L.R. 322 (S.C.), at paragraphs 23 and 24, in the following manner:

I consider that Rule 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 of 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.

[11]        
Registrar Bouck, as she then was, in Prehara v. Royer, 2007 BCSC
912, at paras. 30-31, writes:

[30]      There does indeed appear to be some superfluous or,
at the very least, unnecessary photocopying. A party may, of course, prepare
its case as it wishes. However, the party paying costs should only be liable
for the necessary (or proper) costs of that preparation. In my view, it was not
necessary to create binders for the mediation. Nor was it necessary to copy all
of the plaintiff’s documents to all of the experts retained. Finally, the
defendants should not bear the cost of photocopying documents for the
plaintiff’s own records.

[31]      In Sovani v. Jin,
2006 BCSC 855, Registrar Blok describes the assessment of photocopying charges
as a "rough and ready exercise". Using that methodology, I allow all
of the photocopying charges at $1,200.

[12]        
Although Registrar Bouck’s comments were with respect to photocopying,
the approach illustrates the application of consideration of a disbursement in
the sense of not being extravagant, a result of excessive caution or excessive
zeal, judged by the situation at the time when the disbursement or expense was
incurred, and in consideration of whether the expense is reasonable and
justifiable which should be borne by the unsuccessful litigant.

[13]        
I have applied these principles in my assessment of the disbursements in
dispute.

[14]        
In her first affidavit made July 11, 2013 and filed July 15, 2013, Mr.
Zak’s assistant, Lola Mondin, attaches a copy of the amended bill of costs
annotated to reference certain disbursements. She attaches to her affidavit 74
tabs with copies of the disbursement invoices and other supporting
documentation. I reviewed all of the invoicing for disputed disbursements, as
well as other invoicing and documents contained in this affidavit. For example,
where counsel for ICBC was disputing charges based on submissions that two
experts were retained in the same field, I reviewed the counts of both experts
to assist me in determining whether the incurring of the disbursement was
necessary and/or proper, and also to assist me in determining a reasonable
amount to allow for the disbursement, if I found that it was necessary and/or
proper.

[15]        
Counsel for the third party filed an affidavit of Stacey Whiteside, a
paralegal employed by Mr. Geekie. In that affidavit, a copy of the bill of
costs was attached and, under a column “Objected” was inserted the amount which
the third party submits I ought to allow in substitution of what is claimed.

[16]        
That approach has been extremely helpful in focussing both the
submissions and my decision.

Interest on Disbursements

[17]        
The plaintiff claims $5,211.30 under the description “Interest on
Disbursements – 6%”. The total disbursements claimed are approximately
$90,000.00, exclusive of interest. Lola Mondin, one of Mr. Zak’s legal
assistants, filed several affidavits. In her first affidavit, she attached a
copy of the amended bill of costs and cross-referenced all of the
disbursements, except for those which might be characterized as internal
disbursements (photocopies, long distance charges etc.) to the receipts,
satisfying me that prima facie, all of the disbursements claimed had
been incurred and paid for, apart from an anticipated charge from the
plaintiff’s family doctor, who provided a medical legal report, but has not
charged for it.

[18]        
The disbursements include payments to expert witnesses, including Dr.
McKenzie, an orthopaedic specialist, Dr. Wing, an orthopaedic specialist with a
sub-specialty in foot and ankle surgery, Dr. Cameron, a neurologist, Dr.
Kaushansky, a neuropsychologist, Dr. Denton, a facial plastic and
reconstructive surgeon, Dr. Kramer, an otolaryngologist, Dr. Patterson, the
general practitioner and long-time family physician for the plaintiff.

[19]        
In preparing the plaintiff’s case, the plaintiff was assessed by Carol
Burden of Burden Rehabilitation Services Inc., an occupational therapist, by
Katie Barr, a physiotherapist, by Kamila Zloty, an occupational therapist, who
performed a cost of future care analysis, by Erin Burton, an occupational
therapist, by Dr. Dean Powers, a vocational rehabilitation consultant, by
Robert Carson, an economist. In assisting Mr. Zak in dealing with liability
issues, a toxicologist was retained, as was an accident reconstruction
engineer. An estimate for certain costs related to normal household and
property maintenance tasks which the plaintiff could not now perform was also
retained. Mr. Zak retained Vancouver Litigation Support Services Ltd. (“VLSS”)
to assist in coordination of the clinical legal records.

[20]        
The plaintiff made an affidavit July 11, 2013 filed July 15, 2013. In it
she deposes as follows:

1.         I am the plaintiff in this action and as such have
direct knowledge of the information deposed to in this Affidavit.

2.         At the time of the motor vehicle collision that is
the subject of this action, I was employed full time by Canada Safeway at the
Fortune Shopping Centre location in Kamloops, BC. I was, and remain, a single
parent. My two youngest daughters, Madison and McKenzie, are 16 and 17 years
old respectively. Within the last year, Madison has moved to live with her
father.

3.         At the time of the accident I lived at 8635
Westsyde Road in Kamloops, BC. This was in the rural community of Black Pines.

4.         Following the accident, I was unable to maintain
the property. In addition, my injuries were such that I had to move closer to
Kamloops for medical treatment and therapies. As a result, I purchased a home
at 3182 Sullivan Place, Kamloops, BC.

5.         I was, and remain, unable to sell my home at 8635
Westsyde Road and have had to lease the premises to offset a portion of the
mortgage, property taxes, etc.

6.         Prior to the accident, after satisfying my monthly
payments and obligations, including the mortgage, utilities, etc. and paying
for groceries, clothing and scholastic supplies for my daughters, I did not
have that much remaining at the end of each month.

7.         My financial situation took a turn for the worse
when I was injured in this accident. In addition to the loss of a stable
income, my financial responsibilities increased when I purchased the home on
Sullivan Place.

8.         I was represented by HMZ Law in this action on a
25% contingency fee basis. A copy of the contingency fee agreement is attached
hereto as Exhibit 1.

9.         Interest on disbursements incurred is charged at
the rate of 6% per annum, simple interest, not compounded.

10.       In light of my
financial situation, both before and after the collision, it would have been
impossible for me to afford the thousands of dollars of expenses that were
incurred in preparing and presenting my claim for damages.’

[21]        
Exhibit 1 to the affidavit is as deposed, a contingency fee agreement
which sets out the 25% contingency fee deposed to in paragraph 8.

[22]        
The fee agreement contains the following:

7.         The Client(s) will be
charged interest on the disbursements incurred on their behalf at the firm’s
bank’s prime rate of interest calculated from time to time. Currently, that
rate is approximately 6%. Interest recovery is intended to reflect the interest
paid by the Firm in the management of the claim.

[23]        
In her first affidavit, Lola Mondin deposes:

3.         With regard to interest charges in the amount of
$5,211.30, I have been informed by Kim Dolson, the office accountant for HMZ
Law, and verily believe:

(a)        interest on disbursements
incurred on behalf of the plaintiff amounted to $5,211.30 as of July 3, 2013;

(b)        interest on disbursements is
calculated at 6% simple interest; and

(c)        interest begins to accrue when
the disbursement is incurred.

[24]        
In support of her claim for recovery of the interest she owes to her
lawyer, the plaintiff submits that that interest is recoverable according to
the principles set out by Mr. Justice Savage in Chandi (Guardian ad litem)
v. Atwell, 2013 BCSC 830.

[25]        
In Chandi, there were two appeals from decisions of registrars.
One of the appeals (the “Chandi appeal”) was an appeal from a decision
of a registrar which held that disbursement interest was recoverable based on a
consent order that allowed taxable costs and disbursements, but recovery was
restricted to an amount based on prevailing rates under the Court Order
Interest Act, R.S.B.C. 1996, c. 79, known as the “registrar’s rate”. In the
other case (the “McKenzie appeal”), a registrar held that statements
made by Mr. Justice Burnyeat in Milne v. Clarke, 2010 BCSC 317 were
obiter. In Chandi, the plaintiff claimed an interest cost of $2,859.71
on disbursements funded by the law firm who charged 10% interest on the
disbursements it paid on behalf of the plaintiff, and $25,668.92 to a third
party lender who charged interest at the greater rate of 12% or prime plus
7.5%.

[26]        
In the McKenzie appeal, the plaintiff obtained a loan from a
specialized disbursement lender which, based on the loan agreement between the
parties, was $11,324.71, being the interest at an effective annual rate of
26.82% (2% compounded monthly). Savage J. considered the authorities
extensively, and determined that interest was recoverable and that the
registrar must determine reasonableness in the context of the evidence.

[27]        
I find that it was necessary for the plaintiff to incur significant
disbursements in order to properly pursue her claim. I find as well that the
arrangement she made with her lawyer was both necessary and proper.

[28]        
We are constantly hearing how difficult it is for ordinary people to
afford access to our courts. The fee agreement entered into between the
plaintiff and her lawyer facilitated her having access to the courts. The
interest rate charged by the law firm, that being essentially the interest it
was paying on its operating line of credit (a way in which many law firms
finance their operations) is reasonable.

[29]        
Defendant’s counsel advised that Chandi is under appeal.
Plaintiff’s counsel pointed out that the plaintiff has no ability to control
whether that appeal will ever proceed, and the plaintiff should not be
restricted from executing on its judgment, including costs, while awaiting the
unknown result of an appeal.

[30]        
Savage J., at paras. 35 and 36, gave a succinct and accurate analysis of
comity and the principles enunciated in Re Hansard Spruce Mills, [1954]
4 D.L.R. 590 (BCSC), as follows:

[35] In Re Hansard Spruce Mills, Wilson J., as
he then was, was asked to give a ruling that was at direct variance with the
ruling of a fellow judge of the Supreme Court. In refusing to contradict the
ruling of a judge of the same court, Wilson J. said:

The Court of Appeal, by overriding
itself in Bell v. Klein, [1954] B.C.J. No. 152, has settled the law. But
I have no power to overrule a brother Judge, I can only differ from him, and
the effect of my doing so is not to settle but rather to unsettle the law,
because, following such a difference of opinion, the unhappy litigant is
confronted with conflicting opinions emanating from the same Court and
therefore of the same legal weight. This is a state of affairs which cannot
develop in the Court of Appeal.

Therefore, to epitomize what I have
already written in the Cairney case, I say this: I will only go against
a judgment of another Judge of this Court if:

(a)        Subsequent
decisions have affected the validity of the impugned judgment;

(b)        it is
demonstrated that some binding authority in case law, or some relevant statute
was not considered;

(c)        the
judgment was unconsidered, a nisi prius judgment given in circumstances
familiar to all trial Judges, where the exigencies of the trial require an
immediate decision without opportunity to fully consult authority.

If none of these situations exist I
think a trial Judge should follow the decisions of his brother Judges.

Re Hansard Spruce Mills at
592.

[36] Re Hansard Spruce
Mills has been cited in over 460 cases (and counting). It has a lengthy
history of application in British Columbia courts and has been described as the
"dominant approach" to judicial comity in Canada: Debra Parkes,
"Precedent Unbound? Contemporary Approaches to Precedent in Canada"
(2007) 32 Man. L.J. 135 at 160.

[31]        
Chandi is binding on me. No restriction is placed on the award of
interest as part of my assessment of costs. The interest claimed is both
necessary and proper, and is claimed in a reasonable amount. It is allowed in
full as claimed.

Long Distance, Courier, and Postage and Handling

[32]        
The amounts in issue under these three descriptions are relatively
small; the plaintiff has agreed to accept the amounts proposed by the third
party, which are amounts of $129.53 for long distance, $837.83 for courier, and
$200.84 for postage and handling.

Taxi Fares

[33]        
The plaintiff claims for taxi fares to and from plaintiff’s counsel’s
office to the Kamloops Courthouse on April 10 and 11, 2013. These were for
plaintiff’s counsel’s staff to file a short leave application. The third party
argues that these are an extravagance.

[34]        
As between the lawyer and his client, they may not be an extravagance,
but they are in the nature of office overhead, contained within the tariff
items and not a proper disbursement claimable from the unsuccessful litigant.
The claim for taxi fares in the amount of $28.30 is not allowed.

Photocopies

[35]        
The fourth affidavit of Lola Mondin reads as follows:

1.         I am a legal assistant with HMZ Law, solicitors
for the plaintiff, and as such, have direct knowledge of the information
deposed to in this Affidavit.

2.         With regard to our claim for photocopying charges,
our office uses a photocopy management system. When copies are required on a
particular file, the file number is typed into a ‘COPITRACK’ machine and the
number of photocopies are automatically posted to that individual file. Most of
these were associated with the volume of clinical records received from the
various doctors, other medical professionals, employment records, etc. that had
to be copies and circulated to the various experts and defence counsel.

3.         I [have] been informed
by Kim Dolson, our office accountant, and verily believe that 18,833 copies
were produced over the course of this action.

[36]        
In submissions, Mr. Zak, on behalf of the plaintiff, confirmed that
these are indeed photocopies used in the action as opposed to printing charges
where, for example, the same tracking is used for printing of emails and
letters in addition to photocopying.

[37]        
Defence counsel submits that this number of photocopies is excessive. He
points to additional sets of materials which he submits are an unnecessary
extravagance which ought not to be borne by the unsuccessful litigant.

[38]        
It is apparent from the materials placed before me at the hearing and,
generally speaking, photocopying of the various documents used in this action
were both necessary and proper. By utilizing the “rough and ready” approach
adopted in a determination of what would be a reasonable amount to allow for
photocopying, I determine that 16,000 photocopies at 25 cents per copy, for an
amount of $4,000.00, is a reasonable amount.

Faxes

[39]        
The plaintiff claims $531.30. The third party submits that faxes should
be allowed at $300.00. Applying the same “rough and ready” approach as to
photocopies, and recognizing that scanning and emailing are generally much more
effective ways of transmitting documentation, the position taken by the third
party on this particular disbursement is appropriate and the disbursement is
allowed at $300.00.

In-Office Coloured Copies and CD/DVD

[40]        
The plaintiff claims $262.70 respectively under these two headings and
proposes that I allow these at one-half of the claimed amount. Counsel for the
third party points out correctly that there is no evidence of these
disbursements having been incurred.

[41]        
Lola Mondin, legal assistant to counsel for the plaintiff, in her first
affidavit sets out a copy of the amended bill of costs and references most of
the items claimed to tabs behind which are the supporting documentation for the
items claimed.

[42]        
In her fourth affidavit, she supplies the backup evidence with respect
to photocopies.

[43]        
No evidence has been provided with respect to faxes and in-office
coloured copies. The onus of proving incurring disbursements is on the party
claiming those disbursements. The claims for in-house coloured copies and
CD/DVDs are not allowed.

Vancouver Litigation Support Services Ltd.

[44]        
The plaintiff is claiming $5,437.50, which is what was paid to Vancouver
Litigation Support Services Ltd. (“VLSS”). A description of what VLSS does is
contained in a letter from Eileen Finnegan, attached as exhibit 10 to the
second affidavit of Lola Mondin. In that letter, Ms. Finnegan writes:

Vancouver Litigation Support Services Ltd. is a boutique firm
specializing in the transcription of clinical records and hospital documents
into a chronological medical summary into layman’s terms. In addition,
Vancouver Litigation Support Services Ltd. provides comprehensive medical
documents analysis and review for a variety of clients in the Personal Injury,
Disability, Casualty and Auto areas of the insurance industry.

With respect to your particular case noted above, I
personally reviewed an extensive package of clinical records, hospital records,
laboratory results, radiology and diagnostic reports, medical reports and
therapy notes in order to provide you with an accurate medical picture of your
client’s health status both pre and post-accident. Per the medical package
provided, I reviewed more than 100 sets of medical documents on this matter
spanning the time-frame from 1993 through 2011.

With a background in physiology
and anatomy, as well as 30 years in the medical transcription and medical
documents review field, I was able to provide you with a detailed chronological
summary of the medical issues on this matter. In particular, since some of your
client’s medical issues had surfaced prior to this accident, utilizing the medical
documents available it was demonstrated that there was a period of quiescence
with respect to these complaints prior to the accident in question.

[45]        
Ms. Finnegan prepared a three-page letter, together with an 88-page page
report summarizing the medical documents. No doubt this was very helpful to
plaintiff’s counsel. However, in my view, this report probably would not have
been admissible in evidence as it is almost entirely a hearsay recitation of
what is contained in reports done by others.

[46]        
A rate sheet detailing rates applicable to clerical, associate and
professional duties at billing rates of $60, $85 and $125 per hour was provided
as part of submissions.

[47]        
Although I am satisfied that the services performed by VLSS were of
assistance to the plaintiff, they are really the sort of services which would,
in some law firms, be performed in-house by paralegals. Charges for the
services performed by VLSS may well be properly payable by a client to a lawyer
pursuant to a retainer agreement. However, I find that these services are, on a
party-party bill, subsumed in the tariff items and, in particular, tariff item
17. The analysis undertaken by VLSS could have been performed by lawyers.

[48]        
As between the lawyer and his client, it was not extravagant; it was
probably a reasonable way to deal with the voluminous medical evidence.
However, as between a successful litigant and unsuccessful litigant, the
expense is not reasonable and justifiable to the extent that it should be borne
by the unsuccessful litigant, and is disallowed.

Dr. K.J. Wing

[49]        
As set out in para. 7 above, the plaintiff suffered a number of
injuries, including a severe fracture of her right ankle joint, involving both
the right lower tibia and fibula, as well as other soft tissue and
musculoskeletal injuries, lower back pain, knee contusions, pain, and facial
injuries.

[50]        
In paragraphs 56 through 62 of his affidavit, Mr. Zak deposes as to the
necessity of having the plaintiff assessed by Dr. G.M. McKenzie, an orthopaedic
surgeon. Paragraphs 57, and 59 through 61 of Mr. Zak’s affidavit are as
follows:

57.       Dr. McKenzie initially assessed the plaintiff on
November 17, 2010. He reviewed and commented on all of her injuries that were
within the scope of his expertise. With regard to the pilon fracture, Dr. McKenzie
concluded that the plaintiff had sustained a severe injury to the lower right
tibia and had gone on to develop fairly significant osteoarthritis. He
determined that the plaintiff would likely require further operative procedures
in the future and reasoned why he recommended an ankle fusion over that of an
ankle replacement.

59.       Dr. McKenzie examined the plaintiff again at my
request approximately two years later on November 28, 2012. It was necessary
for me to obtain an updated orthopaedic opinion following the plaintiff’s
return to work and to prepare for the trial of this action that was scheduled
to commence on            July 22, 2013.

60.       With regard to the plaintiff’s ongoing pain and
disability relating to the pilon fracture, Dr. McKenzie made the following
observations:

…In my opinion this lady does have osteoarthritis in the
ankle. In my opinion this will do nothing but worsen with the passage of time.
She may be a candidate for an ankle arthrodesis. As I indicated in my previous
report, that would expose her to the potential risks of surgery including the
fact that the fusion might not take and she might need more than one surgical
procedure to get fusion. If she did have a successful fusion that would likely
mitigate the ankle pain but it would then throw increased force across the
subtalar joint, midfoot and forefoot, which would increase the risk of
degenerative changes in those joints as time went on. As I indicated previously
this would not give her a normal ankle but it certainly could improve the pain
that she is reporting now, which is causing most of the limitations in her
activity, including her work activity.

61.       Dr. McKenzie concluded his report by recommending a
review by a lower extremity specialist:

In my opinion it might be useful to have this lady assessed
by a subspecialty foot and ankle surgeon to discuss the possibility of ankle
fusion and the ramifications of her situation both with or without a fusion.
They should also discuss arthroplasty. It remains my opinion however that she
is not likely to be a candidate for arthroplasty at this point in time in view
of her young age. The older she gets however the more likely ankle arthroplasty
becomes a potential solution to her problems rather than just fusion.

[51]        
In paragraph 63 of his affidavit, Mr. Zak deposes as follows:

63.       In light of the medical
recommendation for review by an orthopaedic subspecialist, I made arrangements
for the plaintiff to be assessed by Dr. Kevin J. Wing, a specialist in foot and
ankle surgery.

[52]        
Dr. Wing examined the plaintiff on January 21, 2013, and provided an
eight-page medical/legal report dated that day. Dr. Wing then reviewed a
neurology report, some occupational therapy reports, a letter from a
neuropsychologist, a cost of future care analyst and a physical capacity
evaluation report, and wrote a further letter on April 8, 2013, confirming his
opinion, and then in that letter stating:

I would like to clarify that if
Ms. Franzman underwent ankle fusion surgery she would benefit from 6-12 weeks
of physiotherapy post-operatively.

[53]        
Dr. Wing rendered an invoice on April 19, 2013 for $3,500.00 relating to
the independent medical examination, medical/legal report, and although not
referenced on the account, the follow-up letter.

[54]        
In addition, the plaintiff is claiming $185.00 for taxi and meals to
attend the appointment with Dr. Wing, and $469.25 airfare which, together with
taxes, totals $525.56.

[55]        
The $185.00 conduct money paid to enable the client to travel to see Dr.
Wing was objected to, as was the entirety of Dr. Wing’s account. The claim for
airfare was not objected to. In view of the submissions of the third party’s
counsel, I treat that as an oversight, as the position of the third party was
to object to all disbursements claimed with respect to Dr. Wing.

[56]        
Counsel for the third party argues that Dr. McKenzie was retained for an
orthopaedic assessment and gave an orthopaedic assessment. Counsel further
argues that the effect of Dr. Wing’s examination was analogist to an
examination that would be done by a treating specialist to whom a patient had
been referred. The third party’s counsel argues that the medical/legal opinion
provided by Dr. Wing essentially deals with treatment, and is in all material
respect duplicative of the opinions provided by Dr. McKenzie. To use the
language of the test for determining the recoverability of a disbursement, the
third party’s position is that this expense was extravagant and/or a result of
excessive caution or zeal, and was not necessarily or properly incurred.

[57]        
Counsel for the plaintiff argues that Dr. McKenzie’s opinion to have the
plaintiff assessed by a sub-speciality foot and ankle surgeon was not a
recommendation for treatment.

[58]        
As I read the reports of Dr. McKenzie and Dr. Wing in conjunction, I find
that Dr. McKenzie opined a further assessment in order that the consequence of
the injury could be better determined.

[59]        
One example of this better determination is the passage I cited from Dr.
Wing’s follow-up letter of April 8, 2013, where he gave an opinion on an item
which would result in future care costs, and also, potentially, future economic
loss.

[60]        
After reviewing all of the relevant evidence, I find that the
disbursements associated with the medical examination, medical/legal report,
and follow-up letter of Dr. Wing were necessary and were properly incurred. The
cost of attendance ($185.00 for taxi fares to and from Kamloops Airport and to
and from Vancouver Airport, and meals) and airfare in the amount of $469.25,
plus taxes, are reasonable, and those disbursements are allowed as claimed.

[61]        
In reviewing the totality of the disbursements relating to the
orthopaedic surgeons, five accounts from Dr. McKenzie are in evidence before
me. Those five accounts total $9,150.00.

[62]        
Even considering the fact that the plaintiff, through no fault of her
own, sustained serious orthopaedic injuries, I do not consider that the
totality of the disbursements claimed for orthopaedic surgeons is reasonable. I
allow $2,350.00 of the $3,500.00 claimed for Dr. Wing, resulting in an
allowance of $11,500.00 for orthopaedic medical/legal bills, plus ancillary
expenses.

OT Consulting Treatment Services (“OT Consulting”), Carol Burden and
Seasons Consulting (“Seasons”)

[63]        
As set out in Mr. Zak’s affidavit at paragraph 105, he:

…determined that it would be
necessary to retain an occupational therapist in the community. The
occupational therapist’s role in this case was to make independent and detailed
observations regarding the plaintiff’s pain and limitations, recommend
potential modifications to the home and work place as well as suggest potential
treatment options. I further required an expert on the cost of present and
future care whose recommendations would be reviewed by a physician to ensure
medical justification and reasonableness.

[64]        
Mr. Zak retained Carol Burden who wrote a report dated September 27,
2010, and continued to follow the plaintiff. She provided a second report dated
January 10, 2011, and rendered three accounts totalling approximately
$12,500.00. No objection has been taken to those accounts.

[65]        
However, Ms. Burden was unable to continue due to her own medical
condition and closed her practice.

[66]        
Mr. Zak then retained two occupational therapists. Kamila Zloty was
retained to determine future medical needs and costs associated with the
plaintiff’s ongoing medical condition. Ms. Zloty is an occupational therapist
with OT Consulting.

[67]        
In addition, Mr. Zak retained Erin Burton to “take over the matter to
provide domestic cost of care recommedations.” Ms. Burton is an occupational therapist
with Seasons Consulting Group.

[68]        
Counsel for ICBC takes no issue with three of the invoices rendered by
OT Consulting (Ms. Zloty). Counsel for ICBC submits that by the time Seasons
Consulting Group (“Seasons”) gets involved in late 2012, it is unnecessary to
retain a further occupational therapist. In addition to the disputed account of
March 22, 2011, OT Consulting billed approximately $7,000.00, which counsel for
ICBC has not taken issue with.

[69]        
The March 22, 2011 account is the balance of an account, the original of
which was $3,767.59 exclusive of taxes. ICBC partially reimbursed $1,250.00 of
this account, but disputes the balance on the basis that the functional capacity
evaluation report, in conjunction with the other OT Consulting expenses incurred,
do not meet the tests to allow those disbursements.

[70]        
The approach I have followed in this case is to review the accounts and
the work product in their totality.

[71]        
Counsel for ICBC retained Sheila Branscombe of Meridian Rehabilitation
Consulting Inc. to assess the plaintiff and perform a functional capacity
evaluation. Her report dated April 26, 2013, on page 9, references the March
22, 2011 report under three “bullets” and references the effort testing set out
in the OT Consulting report.

[72]        
The Seasons’ report dated January 23, 2013 is largely duplicative of the
March 22, 2011 OT Consulting report and parts of Carol Burden’s reports.

[73]        
The Seasons’ cost of future care report dated April 14, 2013 is
comprehensive, but limited to a determination of the residual effects of the
plaintiff’s injuries on her current and future ability to function
independently in her home and yard maintenance activities. A cost of future
care analysis was also done by OT Consulting who prepared a report dated April
11, 2013. She has not included the cost associated with home and yard
maintenance.

[74]        
Seasons’ report, on page 3 of 28, states “In preparation of this report,
I received and reviewed the following documents:” and then sets out a document
review and summary of medical history and background information for the next
eight-plus pages.

[75]        
The OT Consulting report dated March 22, 2011 states at page 2:

My opinion and recommendations
are provided within the context of my professional expertise including
professional education and experience.

[76]        
While the cost of future care reports deal with different cost items,
there is significant overlap.

[77]        
The reports taken together are necessary and proper, but in allowing a
reasonable amount, it is inappropriate for the unsuccessful litigant to bear
the entire cost of the reports and, in fact, unfair to require the unsuccessful
litigant to bear most of what is duplicated in those reports.

[78]        
OT Consulting performed a further physical capacity evaluation on
November 29, 2012, approximately nine months after the evaluation done on March
1, 2011. That report considered vocational options which were not available at
the time of the earlier report.

[79]        
By the very nature of the opinions sought from the various occupational
therapists and from Ms. Barr, who is not an occupational therapist, but who
performed the physical capacity evaluations as a physiotherapist, there is
significant duplication. Carol Burden’s invoices for work done in the latter
part of 2010 and early 2011, as noted, total approximately $12,500.00. The OT
Consulting invoices commence March 22, 2011, and with respect to the invoice of
that date, given the reliance placed on it by ICBC’s own expert, and the fact
that it established a baseline for future evaluations, but also taking into
account that through no fault of either the plaintiff or the defendant, Ms.
Burden could not carry on, I allow that report in the amount of $2,000.00.
ICBC’s counsel has not objected to the balance of the OT Consulting reports
which total approximately $7,100.00. Counsel suggests that given the overlap
between Ms. Burden and OT Consulting, some amount should be awarded for
Seasons, but in the $1,500.00 to $2,000.00 range. There is no doubt that a
significant amount of what has been billed by Seasons is duplicative of what
has been billed by OT Consulting. Where the disbursements unnecessarily
duplicate work done by OT Consulting, Seasons’ accounts are to some extent
extravagant and to some extent a result of excessive caution, and although the
opinions sought are necessary, the incurring of the entirety of the
disbursements, where that involves significant duplication, is not proper.
Seasons’ accounts total $7,283.75. After factoring in the overlap with the
Carol Burden accounts, the overlap with the OT Consulting reports, I allow half
of that amount, or $3,641.88.

Associated Economic Consultants

[80]        
Associated Economic Consultants were retained by counsel for the
plaintiff and rendered an account of $6,595.00, plus GST. The account, dated
6/24/2013, referenced three reports, a loss of past and future wages and
benefits report dated April 15, 2013, a loss of future wages and benefits,
calculations made on instruction, report of April 24, 2013, and cost of future
care schedules, based on reports of Zloty and Burton, in a report dated April
23, 2013.

[81]        
As noted above, Kamila Zloty is an occupational therapist with O.T.
Consulting and Erin Burton is an occupational therapist with Seasons
Consulting.

[82]        
Robert Carson, the principal of Associated Economic Consultants Ltd.,
and the author of the reports, also provided a further report dated April 30,
2013, to replace his April 15, 2013 report wherein he had incorrectly entered
the plaintiff’s birthdate in the model he used to make the calculations. He did
not charge for this replacement report.

[83]        
Mr. Geekie, on behalf of ICBC, submits that while there is some value to
the work performed by Mr. Carson, many aspects pertain to simple mathematics
that are relatively simple. In addition, Mr. Geekie points out that a
determination of “future wage loss” [sic] is an assessment, not a calculation.
He summarizes his submissions by saying that the plaintiff “got a Cadillac when
a Chevrolet would have done,” and suggests that $3,000.00 to $3,500.00 was an
appropriate amount to allow.

[84]        
In his affidavit, Mr. Zak deposes to the rationale for retaining an
economist at paragraphs 120 through 126. He deposes that he wanted to determine
with some accuracy the plaintiff’s loss of past and future income and non-wage
benefits based on various scenarios. He also deposes that Mr. Carson evaluated
the cost of care recommendations for future medical services, equipment and
supplies, as well as domestic homecare and related assistance.

[85]        
It is true that some of the calculations performed by Mr. Carson are
arithmetic calculations and only the basis for them might be needed. It is
equally true that some judges prefer to have the calculations provided in an
economist’s report.

[86]        
Given the issues at stake here for the plaintiff, it is my view that the
retaining of Mr. Carson, through his company, was both necessary and proper.

[87]        
As stated elsewhere in these reasons, and in other decisions where the
accounts of experts have been challenged and scrutinized, the plaintiffs do not
have a bargaining position when it comes to retaining experts. The reports
generated by Associated Economic Consultants Ltd. are detailed. They relate to
the issues. The account rendered for those reports is broken down in detail in
a letter attached as exhibit 7 to the second affidavit of Lola Mondin. The letter
satisfies me that the account is justified, and it is allowed in full.

Neuropsychologist – Dr. Kaushansky

[88]        
In paragraphs 67 and 68 of his affidavit, Mr. Zak deposes:

67.       The plaintiff had complained of cognitive
difficulties following the collision. She exhibited symptoms of depression
which apparently arose from her abrupt decline in function and financial
worries. Dr. McKenzie, orthopaedic surgeon, had noted her difficulties at page
6 of his report of November 22, 2012:

 I
asked her about anxiety and depression. She tells me it is “about the same”.
She stated “I can’t do the things I did before”. Anxiety and depressions are
not areas of my expertise and I will not opine on that issue.

68.       Dr.
Cameron, neurologist, diagnosed the plaintiff as having sustained a mild
traumatic brain injury and noted the following at page 6, paragraph 35, of his
report:

35.       Ms. Franzman did indicate to me
that she is still suffering with ongoing waves of depression. I would recommend
that she be assessed by a psychiatrist or a psychologist, as she is reporting
ongoing psychological symptoms in the form of depression, as she may benefit
from further counselling or other forms of therapy for her ongoing symptoms of
depression. She did receive psychological counselling following the accident
but she found the psychological counselling only to help to a limited degree.

[89]        
The plaintiff was assessed by Dr. Mel Kaushansky, a neuropsychologist.
He included that the plaintiff has sustained a mild traumatic brain injury to
the extent that the plaintiff’s pain would persist, so to would her cognitive
inefficiencies, that the plaintiff had persistent depression and would benefit
from psychological intervention, and if pain persisted there might be mild
cognitive inefficiencies which may impact performance. I have paraphrased from
his medical/legal report, extracts of which are in paragraphs 71 and 72 of Mr.
Zak’s affidavit which I will not reproduce in full.

[90]        
I note that Mr. Carlin, in the Carlin Vocational addendum letter dated
April 29, 2013, reviewed Dr. Kaushansky’s letter of March 7, 2013 and utilized
aspects of it in determining his opinion (see page 11 of that report).

[91]        
Counsel for ICBC took no objection to an account from Dr. Donald Cameron
in the amount of $3,898.00. Counsel submitted that Dr. Kaushansky’s report
“just brought us to the same end as Dr. Cameron” and was unnecessary. Dr.
Cameron is a neurologist. In paragraph 27 of his January 12, 2013 report, he
writes:

It is my opinion that Ms.
Franzman suffered a mild traumatic brain injury or concussion at the time of
the motor vehicle accident.

[92]        
At paragraphs 33 and 35 of his report, Dr. Cameron gives his opinion
that Ms. Franzman has not developed symptoms diagnostic of a post-traumatic
brain injury or post-concussion syndrome. In paragraph 25, he writes:

I would recommend that she be
assessed by a psychiatrist or a psychologist as she is reporting ongoing
psychological symptoms in the form of depression and she may benefit from
further counselling or other forms of therapy for her ongoing symptoms of
depression. She did receive psychological counselling following the accident,
but she found the psychological counselling only to help a limited degree.

[93]        
Mr. Geekie submits that this a recommendation for treatment. Mr. Zak
submits that it is a recommendation for a further assessment necessary, in his
view, to ensure that the plaintiff’s difficulties with depression and mentation
were fully before the court.

[94]        
Dr. Kaushansky’s first letter to Mr. Zak dated March 7, 2013 primarily
deals with treatment.

[95]        
Dr. Kaushansky, on pages 10 and 11 of his report, sets out seven
numbered paragraphs under the “Clinical Impressions”. Some of what Dr. Kaushansky
opines on overlaps significantly with what other experts, including Dr.
Cameron, Dr. McKenzie, some overlaps with evidence given by Mr. Carlin, a
vocational expert, some overlaps with evidence given by Dr. Younger, an
orthopaedic surgeon, retained by ICBC to conduct an independent medical
examination (“IME”), and by Dr. Hirsch, a physical medicine and rehabilitation
expert retained by ICBC for the purpose of conducting an IME of the plaintiff.
However, some of what Dr. Kaushansky opines is not a duplication. For example,
he relates the plaintiff’s mild cognitive inefficiencies to the accident. He
confirms that, to the extent that right ankle pain may persist, it is likely
that cognitive inefficiencies and issues of mood will persist. He recommends and
sets up a course of psychological intervention. These factors lead me to the
conclusion that retention of Dr. Kaushansky was proper. The disbursements for
retaining him are likewise properly incurred.

[96]        
However, as noted, there is an overlap between some of what Dr.
Kaushansky has concluded and what other experts have concluded.

[97]        
Dr. Kaushansky provides a letter of justification dated July 4, 2013,
appended to Lola Mondin’s second affidavit as exhibit 4. He gives a breakdown
of the time in his invoice.

[98]        
One of the difficulties plaintiffs and their counsel have in retaining
experts is that, typically there is not much of a bargaining position to enable
the plaintiff and her counsel to negotiate a fee. The experts charge what they
charge and, for the most part, those charges ought not to be scrutinized too
carefully. Keeping all of that in mind, I find that the entirety of Dr.
Kaushansky’s account charges for matters which are duplicated elsewhere. To
some extent the totality of his account ought not to be borne by the
unsuccessful litigant. Put another way, a reasonable amount on the facts before
me is less than the full amount of his accounts. Insofar as the account exceeds
a reasonable amount, it is extravagant.

[99]        
The “extravagance” which I relate to duplication of findings, the cost
of which ought not wholly to be borne by the unsuccessful litigant, are
primarily in the file review and report writing aspects of the account. The
account is for $8,601.20; I allow it at $7,000.00.

Liability Disbursements – Baker Materials Engineering Ltd. and W.K. Jeffrey

[100]     As noted
above in para. 6, ICBC and Goddyn denied liability.

[101]    
Mr. Zak’s evidence with respect to these disbursements in set out in
paragraphs 21 through 28 of his affidavit as follows:

Jonathan Gough

21.       Given the denial of liability, the allegations of
contributory negligence and with the collision occurring in Munro’s lane of
travel, it was necessary to hire an engineer with expertise in motor vehicle
collision investigations. I hired Jonathan Gough of Baker Materials Engineering
Ltd. Mr. Gough is a recognized expert who has been qualified to give opinion
evidence in many cases before the Supreme Court of British Columbia.

22.       Mr. Gough attended at the scene of the collision on
September 30, 2010. He took measurements, photographs and otherwise recorded
his observations and findings. I did not ask Mr. Gough to prepare a report
pending the gathering of more information, including the RCMP file, the
completion of examinations for discovery, etc.

Wayne Jeffrey

23.       From a review of the RCMP file, it appeared to me
that the criminal charges that were brought against Munro, in the main, were
related to her use of the prescription narcotic, Fentanyl. She had also
admitted to the concurrent use of a number of other prescription medications.
Further, the RCMP records disclosed that forensic testing of blood samples
indicated a high concentration of methamphetamine in the plasma.

24.       It was necessary to determine the state of Munro’s
sobriety at the time of the collision and thus I retained Wayne Jeffrey, a
toxicologist. Mr. Jeffrey has been qualified to give opinion evidence on
alcohol and drug intoxication in both the Provincial and Supreme Court of
British Columbia.

25.       Prior to Munro’s examination for discovery, I had
asked Mr. Jeffrey to review the RCMP file and provide me with his written
opinion commenting on Munro’s level of impairment. A copy of his report dated
April 8, 2013 will be produced at the assessment.

26.       In preparing for the examination for discovery, I
had asked Mr. Jeffrey to assist me with questions to put to Munro relating to
substance abuse. A summary of the questions that Mr. Jeffrey prepared is
attached hereto as Exhibit 3.

27.       At the examination, I asked Munro about her
consumption of methamphetamine:

374      Q         You
were also on methamphetamine?

 A          Yes,
it was in my other pills had that in it for my dieting.

375      Q         What
was the name of the diet medication?

A          I have to get it, I was on
about maybe seven different pills, I guess, at the time, with my fentanyl
patch. Well you must obviously know what it all is if you are reading it to me.
You must know all the different things.

376      Q         You
are saying that the methamphetamine was in a diet drug?

 A          Yeah.

377      Q         How
did you consume it, tablet form?

 A          Tablet
form.

378      Q         Did
you take any illicit drugs?

 A          No,
and I still do not ever do that.

28.       As a result of these answers, it was necessary for
me to consult with Mr. Jeffrey again as to whether methamphetamine is an
ingredient in diet medication. In his subsequent report dated April 24, 2013, a
copy of which will also be produced on assessment, Mr. Jeffrey stated the
following:

1.         Methamphetamine
is a controlled drug in Schedule 1 of the Controlled Drugs and Substances
Act in Canada. Methamphetamine is not available either as a prescription
drug or a non-prescription in Canada for use in diet control or any other
medical condition.

2.         In the late 1960’s
methamphetamine [used] to be available as a prescription drug for use in diet
control, but due to its abuse potential this drug was taken off the market in
the late 60’s.

[102]     Exhibit 1
to the second affidavit of Lola Mondin is a letter from D. Harvey West, senior
partner at Baker Materials Engineering Ltd., setting out justification for the
hourly rate charged, confirming that the engineer who attended has 27 years of
experience in the field of motor vehicle collision investigations, confirmed
that the field work included travel from Vancouver to examine the collision
site in Kamloops on September 20, 2010, and set out that other time was for
review of documents and discussions with counsel. There was an explanation of
other charges, including photographic documentation and vehicle expenses.

[103]     Two
accounts are exhibited. The one dated October 7, 2010 bills for 4.5 hours at
$250.00 an hour; 10 hours “field” at $200.00 an hour; some clerical resources,
photographic documentation, and a charge of $504.40 based on .65 cents per
kilometre for vehicle expenses. The account, exclusive of HST, of $3,601.90, is
for reviewing the RCMP file. It references an invoice for 1.25 hours at $275.00
an hour, plus $30.00 for clerical resources for a subtotal of $373.75, plus
HST.

[104]     Given the
seriousness of the injuries, the placing of liability in issue, and the fact
that the collision occurred in what would normally be the defendant, Munro’s
lane of travel, taking of photographs and performing investigations is
necessary, and the incurring of disbursements to perform that work is proper.
However, it is important to keep in mind that the incurring of the disbursement
is to be assessed based on the situation at the time the disbursement is
incurred. I find the amount billed to be excessive. Given that no analysis was
done, only the gathering of evidence, it seems to me to be extravagant to
retain an engineer from Vancouver for that purpose.

[105]     I do not
find it extravagant to consult with an engineer with expertise in motor vehicle
collision investigations when reviewing the RCMP file, and I allow that account
in the amount of $373.75 in its entirety.

[106]     Recognizing
that evidence gathering needs to be done at the direction of an engineer, but
could have been done using local resources, which would have done away with the
need for the vast majority of travel expense and much of the field engineer
work, I allow $2,500.00, plus HST on the Baker Materials Engineering Ltd.
invoice dated October 7, 2010.

[107]    
With respect to the accounts rendered by the toxicologist, I have
considered the evidence of the defendant, Munro, who claimed to be using
methamphetamine for dieting. Mr. Jeffrey gave an opinion that the concentration
of methamphetamine found in Munro is indicative of a subject who is abusing
methamphetamine. He further opines, “This concentration alone will impair a
subject’s ability to drive a motor vehicle safely.” He gave other opinions
which, if admissible, would have assisted the plaintiff in establishing
liability. He gave a further opinion which directly contradicted the testimony
of Munro on her examination for discovery in a way which would have assisted
the plaintiff in establishing liability.

[108]    
The accounts of the toxicologist total $800.00.

[109]    
The retaining of a toxicologist in the circumstances of this case was
necessary, the expense was properly incurred, and the amount invoiced was,
given the issues in this case, reasonable. The accounts of W.K. Jeffrey are
allowed as presented at $700.00 and $100.00 respectively.

Vocational Consulting and Placement

[110]     The
plaintiff retained two vocational consultants, Richard Carlin and Dean Powers
(Harbourview Rehabilitation). Carlin Vocational rendered two accounts totalling
$4,877.50, plus applicable taxes. The third party has not objected to these
accounts. Harbourview Rehabilitation rendered three accounts totalling
$4,470.00. ICBC objects to these accounts. They point out that there is
significant overlap between the Carlin and Powers’ reports.

[111]    
In dealing with his view of the necessity of retaining Mr. Powers, Mr.
Zak deposes in paragraph 99 of his affidavit as follows:

99.       Having secured Richard
Carlin’s opinion as to the global view of the plaintiff’s residual
employability, I considered it necessary to retain Dean Powers, a vocational
placement specialist, with Harbourview Rehabilitation Occupational Health
Consultants Ltd., who is experienced in placements, work trials and rehabilitation
employment for traumatically injured individuals. Mr. Powers has been accepted
as an expert witness on many occasions in the Supreme Court of British
Columbia.

[112]    
Mr. Carlin’s report dated July 7, 2011, at page 8, shows that he
reviewed the job bank for the Kamloops area and opined that:

…more probably than not Ms.
Franzman will be unsuccessful in obtaining employment in the Kamloops area
given her current physical abilities in conjunction with her education and
transferrable skills.

[113]     Mr. Carlin
recommends that the income reduction be determined by a labour economist. He
does an addendum on April 29, 2013, Mr. Carlin gives a précis of Mr. Powers’
report. In Mr. Carlin’s initial report, at page 9, he recommends that the
plaintiff be provided with further vocational counselling and opines that 5 to
10 hours would be sufficient, whereas Dr. Powers recommends a similar fund be
set aside, but opines that 35 hours would be more appropriate.

[114]     Mr. Powers
prepared a report dated December 31, 2012. At one point, he disagrees with Mr.
Carlin (paragraph 8 of his report). In his vocational opinion, although it is
worded differently and, apart from paragraph 8, it is in all essential manners
the same as Mr. Carlin’s report. Under “Vocational Recommendations” he recommends
some psychological services. That is duplicative of other experts, most
particularly Dr. Kaushansky, who recommended some counselling sessions with a
psychologist. The only other vocational recommendation is that a fund be set
aside for the provision of a vocational rehabilitation consultant. He
recommends the use of 35 hours of vocational services.

[115]     Some of
what Dr. Powers has done obviously assisted Mr. Carlin in his follow-up letter
of April 29, 2013. However, the vast bulk of what was done by Dr. Powers was
duplicative of what was done by Mr. Carlin. Essentially, the two experts,
having the same field of expertise, did mostly the same work.

[116]     To the
extent to which Dr. Powers’ accounts are for work done which duplicated what
was done by Mr. Carlin, they are unnecessary.

[117]    
To explain the rationale for retaining both Mr. Carlin and Dr. Powers,
and in particular to explain what, in Mr. Zak’s view, was not duplicated, Mr.
Zak deposes at paragraphs 99 to 100 as follows:

99.       Having secured Richard Carlin’s opinion as to the
global view of the plaintiff’s residual employability, I considered it
necessary to retain Dean Powers, a vocational placement specialist, with
Harbourview Rehabilitation Occupational Health Consultants Ltd., who is
experienced in placements, work trials and rehabilitation employment for
traumatically injured individuals. Mr. Powers has been accepted as an expert
witness on many occasions in the Supreme Court of British Columbia.

100.     I wanted to determine
what the plaintiff would do for employment in the local area in the event that
she was no longer physically able to continue in any meaningful way with Canada
Safeway. The plaintiff had worked for Safeway for many years prior to the
accident and had opportunities for advancement, full benefits and job security.
In light of her injuries, her tenure with Safeway was in jeopardy and she faced
the very real possibility that she might have to find alternative employment.
Given her age and her connection to Kamloops, it was unlikely that the plaintiff
would move to find employment or that an eventual award for income loss would
be reduced for failing to mitigate should she have refused to relocate to
another community. Regardless, I had to present evidence as to what were her
alternative employment prospects in this community.

[118]     Both Mr.
Carlin and Dr. Powers provided justification letters (exhibits 5 and 6 to Lola
Mondin’s second affidavit). I also reviewed their detailed accounts which are
at tabs 50 to 51 for Mr. Carlin and tabs 52 to 54 for Dr. Powers, contained in
Lola Mondin’s first affidavit.

[119]     Dr. Powers
billed a total of six hours at $145.00 per hour and $3,600.00, which he states
is billed at $185.00 per hour, plus HST on the first two accounts and GST on
the final account. After reviewing the accounts, I allow one-quarter of Dr.
Powers’ accounts in the amount of $1,117.50, plus HST, in addition to Mr.
Carlin’s accounts which are not challenged.

SUMMARY

a)    Interest on
disbursements is allowed at $5,211.30 as claimed;

b)    Client travel to
Dr. Wing is allowed at $185.00 as claimed;

c)     Long
distance, courier, and postage and handling are allowed as submitted by Mr.
Geekie at $129.53, $837.83 and $200.84 respectively, a reduction from what is
claimed of $183.94;

d)    Taxi fares are
disallowed, a reduction of $28.30;

e)    Photocopies are
allowed at $4,000.00, a reduction of $708.25;

f)      Faxes
are allowed at $300.00, a reduction of $231.30;

g)    In-house colour
copies and CD/DVD are disallowed, a reduction of $262.70 and $70.00
respectively;

h)    The account of
Eileen Finnegan is disallowed, a reduction of $5,437.50;

i)       The
account of Dr. K.J. Wing is allowed at $2,350.00, a reduction of $1,150.00;

j)      The
O.T. Consulting account of March 22, 2011 is allowed at $2,000.00, a reduction
of $517.59;

k)     The three
Harbourview Rehabilitation accounts are allowed at $1,117.50, a reduction of
$3,352.50;

l)       The
accounts of W.K. Jeffrey totalling $800.00 are allowed in full;

m)  The Associated Economics’
account of $6,595.00 is allowed in full;

n)    The account of
Dr. Kaushansky is allowed at $7,000.00, a reduction of $1,601.20;

o)    The first Baker
Materials account is allowed at $2,500.00, a reduction of $1,101.90. The second
Baker Materials account is allowed in full;

p)   
The seven Seasons Consulting accounts are presented at $7,283.75, half
of which, or $3,641.88, is allowed, a reduction of $3,641.87.

[120]     The
reductions, all from taxable disbursements, total $18,287.05. The disbursement
account was presented at $95,632.41; $8,142.30 of that amount for claimed and
allowed for non-taxable disbursements. The balance, $87,490.11 was claimed for
taxable disbursements and I have allowed those at $69,203.06. GST at 5% on that
amount is $3,460.15. The 105 units agreed upon for the tariff items at $110.00
per unit total $11,550.00. Applicable taxes total $1,386.00, resulting in a
subtotal for the tariff items and taxes of $12,936.00. The bill of costs of the
plaintiff was, therefore, allowed at:

[121]     Some of
the disbursements would also attract PST at 7%. I received no submissions with
respect to this and have not added the applicable PST (or the PST component of
HST) to the above amount. If that amount cannot be determined, the parties have
leave to come back before me by way of written submissions.

[122]     Just prior
to the review, Tim Dolson, an office accountant employed by Mr. Zak’s law firm,
filed an affidavit deposing to disbursements totalling $1,055.24, inclusive of
5% GST. Those disbursements included photocopies, long distance telephone,
courier, telefax, postage and handling, taxi to and from the courthouse, colour
copies appended to Mr. Zak’s affidavit, and two invoices – one from Associated
Economics and one from Seasons Consulting rendered with respect to their
justification letters which were exhibited before me.

[123]     The tariff
items agreed to between counsel included preparation for and attendance at the
hearing before me, but did not include any amount for disbursements. If the
parties cannot agree on the disbursements which the plaintiff would be allowed
on this review, they have liberty to come back before me, either by making
written submissions or by scheduling a further hearing.

[124]    
If a further hearing is desired, counsel for ICBC has liberty to attend
by telephone.

“Master R.W.
McDiarmid”

MASTER McDIARMID