IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130827

Docket: M100512

Registry:
Vancouver

Between:

Janet
Pardo

Plaintiff

And

Heng Yang,
Hui Chen and Van-Whole Produce Ltd.

Defendants

– And –

Docket: M115596

Registry:
Vancouver

Between:

Janet Pardo

Plaintiff

And

Meredith Young and
Douglas Young

Defendants

Before:
Registrar Sainty

Oral Reasons for Decision

In
Chambers

[1]            
THE
REGISTRAR: I have before me for assessment three separate bills
of costs prepared by the defendants following a trial conducted by Mr. Justice
Kelleher in respect of three different motor vehicle accidents in which the
plaintiff was involved.

[2]            
Two actions were commenced.  The first action [Pardo v. Yang and
others, BCSC Vancouver Registry, Action No. M100512] (the “First Action”) concerns
two motor vehicle accidents involving the plaintiff: one on February 8, 2008;
and a second one on February 18, 2008.  The second action [Pardo v. Young
and Young, BCSC Vancouver Registry, Action No. M115596] (the “Second
Action”) relates to a subsequent accident on November 3, 2009.

[3]            
At trial, in respect of the First Action, His Lordship awarded the
plaintiff, Ms. Pardo damages of $8,000 against the defendant Chen, but
dismissed her claims against the other defendants Van-Whole Produce Ltd. and
Heng Yang.  He also dismissed the entirety of the plaintiff’s claim against the
defendants in the Second Action, Douglas and Meredith Young.

[4]            
His Lordship then dealt with costs as follows.  In the First Action, he
ordered that the defendant Chen pay the plaintiff’s costs and disbursements
arising from the motor vehicle accident of February 8, 2008, up to March 16,
2012.  He did so because the defendants in that First Action had made the
plaintiff a formal offer to settle which she did not accept and which, I
understand, she was not able to beat at trial.  He also ordered that the
plaintiff pay all the costs and disbursements of the defendant Chen after March
16, 2012 and all the costs and disbursements of the defendants Van-Whole
Produce Ltd. and Heng Yang arising from the motor vehicle accident of February 18,
2008.  Finally he awarded the defendants all of their costs related to the
Second Action involving the Youngs.

[5]            
I am not going to repeat all of the facts here, because I do not think
it is necessary for me to do so.

[6]            
I should, however, state for the record that when this matter started
this morning (at 10 o’clock), only Ms. Voros was here on behalf of the
defendants.  Ms. Pardo was absent, although duly served with the
appointments to assess the costs.  Because of that, I commenced the hearing.  I
heard most of Ms. Voros’s submissions and adjourned the matter at
approximately 11:20 this morning for the morning break and to allow Ms. Voros
to do some quick calculations.  When I returned to court, I was advised that,
while we were taking the morning break, Ms. Pardo had arrived for the
hearing.

[7]            
When we reconvened, I advised Ms. Pardo what had occurred to that
point and confirmed that I was about ready to provide my decision on the
matter.  I did, however, give Ms. Pardo an opportunity to make some brief
submissions.  Ms. Pardo told me that she was of the view that she ought
not to pay any costs at all and that, instead, all of the her costs ought to be
paid by her insurer (ICBC).  I advised Ms. Pardo that because she was successful
at trial, even though for a small amount, she was entitled to some costs but
Mr. Justice Kelleher had made a decision and I had no jurisdiction to go
behind that decision.  I confirmed that my only jurisdiction was to assess the
costs in the manner ordered by His Lordship, as a registrar’s jurisdiction is to
assess, not award, costs, and that is what we are here to do today.  I should
note that Ms. Pardo still has the right to have her costs assessed in respect
of the defendant Chen up to March 16, 2012.  Having those costs assessed will
reduce the amount she will owe to the defendants in respect of the costs I am
assessing today.

[8]            
Ms. Voros, as I mentioned, had prepared three separate bills of
costs for assessment.  That made my job on this assessment somewhat more
complex because it is often difficult to deal with these matters in isolation. 
It is often easier to deal with one bill of costs where the claims for costs
overlap than try and split those costs between several bills.

[9]            
In fact, there are provisions of the Rules [Supreme Court Civil Rules]
which provide some guidance to a registrar assessing costs in cases such as
these.  Section 7 of Appendix B of the Rules and which deals with “Party
and Party Costs” states:

7.         If 2 or more proceedings have, by order, been
tried at the same time or tried one after the other and no order has been made
as to apportionment of costs, the registrar may

(a)   assess 2 or more bills
as one bill,

(b)   allow an item once or
more than once, or

(c)  
apportion the costs of an item or of the whole bill between the
proceedings.

[10]        
I think Ms. Voros has done a combination of all three of the things
I am entitled to do in preparing her bills of costs.  In fact, she told me that
she claimed certain Items on one bill of costs and not the others; she claimed
certain Items on each of the bills of costs; and, in some instances, she
divided the units she felt were appropriate for a particular Item between the three
bills of cost.

[11]        
Because of how counsel dealt with these bills what I will do now is go
through each of those bills and assess the costs separately.

[12]        
I will start with the Van-Whole Produce Ltd. and Yang bill of costs. 
That bill of costs apparently relates to the entirety of the proceeding [the
First Action] and was based on Mr. Justice Kelleher’s order that the
plaintiff pay the costs of those two defendants for the entirety of that action.

[13]        
Item 2 is the first Item that has been claimed.  Item 2 is awarded for:

Correspondence, conferences,
instructions, investigations or negotiations by a party after the start of the
proceeding to the completion of the trial of hearing, for which provision is
not made elsewhere in this tariff.

[14]        
Clearly there would have been some economies of scale by having only one
counsel deal with all three of these accidents and the two actions.  The defendants
seek 5 units under this Item.  Were this the only action that had been heard, I
would have thought that that number of units (5) was somewhat on the low side
for the work done, but because Ms. Voros has also claimed units under this
Item in her other bills, I will allow the defendants the 5 units that have been
claimed.

[15]        
Item 3 is awarded to the party whose costs are being assessed for things
done by that party after a trial or hearing to enforce any final order obtained
in that trial or hearing.  However, in the description of the Item it clearly states
that it is restricted to things done “for which provision is not made elsewhere
in this tariff”.  The units claimed here relate to Ms. Voros’s preparation
for and attendance at this hearing today – preparing the bill of costs, attempting
to set down the date for hearing and dealing with the settlement of the orders
made by Mr. Justice Kelleher, which, incidentally, I settled earlier this
morning, before Ms. Pardo arrived.  The defendants will be awarded some
units for those processes later, when I deal with the specific Items [Items 30
and 31] related to settling orders and assessing costs.  Accordingly, I will
allow the defendants to claim only 1 unit for this Item as, certainly,
provision is made elsewhere in the tariff for the defendants’ work in this
regard.

[16]        
Item 7 has been claimed.  It is awarded for “all process for which
provision is not made elsewhere in this tariff for defending a proceeding”. 
One unit – the minimum number of units I may award – has been claimed for that
Item, and I will allow it.

[17]        
With respect to Item 10, I understand that, for the most part, the
documents that were obtained related to both actions and that they were all
relevant to both actions.  I believe that this is the only bill of costs on
which this item has been claimed.  The number of units claimed for Item 10
[process for obtaining discovery and inspection of documents] is 3, and I will
allow that as I believe that is reasonable.

[18]        
Item 11 – which is awarded for the “process for giving discovery and
inspection of documents” – was claimed.  Of course there would have been some
different documents “given” in respect to each accident as, in each accident
there would have been documents related to the vehicle damage, witness
statements, photos of the location and separate emergency records for each. 
Two units have been claimed.  I am satisfied that 2 units is more than
reasonable and I will award the defendants the 2 units claimed under this Item.

[19]        
Item 14 was claimed for the “process for delivering notices to admit”. 
One very extensive notice – dated August 23, 2012 and covering both
actions – was prepared by the defendants and sent to the plaintiff.  I was told
that, at the trial management conference, the judge presiding over that
conference suggested to Ms. Voros that, while a document agreement would
be difficult, it would certainly be useful in the circumstances of this case. 
However, as Ms. Pardo was at that point – and remained throughout the
trial – self-represented, the presiding judge advised Ms. Voros that it
would be useful to at least attempt to gain admissions in respect of certain facts,
items and documents.  Following the trial management conference, on the basis of
that advice, Ms. Voros prepared and served a very extensive notice to
admit which sought admissions of facts and documents related to both of the
actions.  The defendants have claimed 2 units on this bill of costs for the
notice to admit.  Again, I am satisfied that that is a reasonable number of
units to claim and I will allow it.

[20]        
Item 17 was claimed for “all process and correspondence associated with
retaining and consulting all experts for the purpose of obtaining opinions for
use in the proceeding”.  Only one expert was retained – Dr. Shahid, Ms. Pardo’s
family physician.  He was retained by the defendants (Ms. Pardo did not
retain any experts herself) to do a medical-legal report.  Dr. Shahid also
attended and gave evidence at trial.  He charged for both the medical-legal
report and his attendance at trial.  All of Dr. Shahid’s charges were
incurred after March 16, 2012.

[21]        
The defendants may claim both charges for the expert, as well as units. 
That however is not what has been done on this bill of costs.  Only units (not
the fees charged by Dr. Shahid) have been claimed on this bill of costs.  I
actually think however, that these units are more appropriately claimed on –
well, it does not matter which bill it is claimed on, I suppose.  I am
going to allow 2 units in total for this expert, and only on one bill – only on
this bill of costs will I allow the defendants units for this expert.  It
probably should be claimed on the same bill where the costs for the expert have
been claimed but, regardless, I will simply allow a total of 2 units for the
expert, whether on this bill or another one.

[22]        
With respect to Item 18 – for witnesses – I was told that only the
defendant was a witness at trial.  The defendant is the defendant.  He is a
party to the proceeding.  In my view, one should not be awarded units under Item
18 for essentially preparing oneself to be a witness at trial.  Units for that
are awarded under Item 2, which is for “correspondence, conferences,
instructions, investigations, negotiations” and the like.  Those descriptions
relate to dealings between a party, his counsel, and the like and, despite the
fact that the de facto defendant here is the Insurance Corporation of British
Columbia, the defendant is the defendant to the proceeding and claims for
instructions, conferences, etc. (which in my view, includes instructions and
conferences related to trial preparation) are awarded under Item 2.  Therefore,
I will not allow the defendants an additional claim for this same work under Item
18.

[23]        
With respect to Items 19 and 20, the defendants have claimed 2 units
under Item 19 and 4 units under Item 20.  An examination for discovery of the
plaintiff took place on November 23, 2011.  It was, in accordance with Appendix
B of the Rules [sections 4(1) and (3)] a “full day” discovery in that it
went longer than two and a half hours.  The defendants have claimed half the
units allowable on this bill of costs.  They have claimed the other half on the
bill of costs related to the defendant Chen.  They would be entitled to claim units
for a full day of discovery – 4 and 8 units for preparation and attendance respectively. 
Accordingly, I will allow the 2 units and 4 units that have been claimed
on this bill of costs.

[24]        
I am also going to allow the defendants to amend the bill of costs to
add one additional unit under Item 29 for the preparation of this bill of
costs.  Item 30 – for this attendance, will only be awarded once and that is, I
think, found on one of the other bills of cost.

[25]        
So by my calculations the defendants have been awarded a total of 23
units on this bill.

[26]        
Is that what you get, Ms. Voros?  At $110 per unit that results in total
tariff costs of $2,530.  But you have claimed HST on the tariff items and, of
course, there is no HST on fees anymore.  Your client only pays one tax on
legal fees:  Which is it?  PST, Ms. Voros?

[27]        
MS. VOROS:  Yes.

[28]        
THE REGISTRAR:  So you only get 7 percent.  You are only entitled to claim
PST on that amount [see Rule 14-1(8) of the Supreme Court Civil Rules] only
$177.10.  So the total tariff costs awarded on this bill are $2,707.10.

[29]        
Minor disbursements were also claimed.  One was the costs of the interpreter’s
attendance on Mr. Yang at trial and for preparing him to be a witness. I will
allow that as a necessary and proper disbursement [see Rule 14-1(5) of the Supreme
Court Civil Rules] for the amount claimed of $260.  I will also allow the
photocopies as claimed.

[30]        
I am assuming you paid HST on the interpreter’s fee?

[31]        
MS. VOROS:  Yes.

[32]        
THE REGISTRAR:  Okay, that fee would attract 12 percent tax – based on
the tax rate in effect when the actual disbursement was paid.  The total of the
disbursements – somebody in your office cannot add – they forgot to add the
tax.  I will award disbursements of $293.55 plus tariff costs of $2,707.10 for
a total of $3,000.65, I believe.  Yes, okay . . . $3,000.65.

[33]        
Turning then to the bill of costs for the defendant Chen.  I am not
going to review all of the Items again.  I will just go through and say what I
think the amount awarded should be.

[34]        
I will reduce the amount claimed for Item 2 because these costs are only
for after March 16, 2012 through to and including the trial.  I will allow 3
units under that Item.  I will allow 1 unit for item 3.  Two units for item 7. 
For the notice to admit, on this bill of costs I will again allow 2 units – it
was comprehensive and related to the defence of Chen, as well as Yang.  For “experts”
I award nothing.  Item 18 should be zero – there was no witness.  I will award 2
units and 4 units for Items 19 and 20 respectively – the second half of the
examination for discovery.  I am deleting the claim for item 23.  It is not an
appropriate claim.  I had that discussion with Ms. Voros earlier, during
her submissions, and I believe she withdrew her claim under that Item.

[35]        
Items 24 and 25 should in fact have been claimed as Items 21 and 22, not
24 and 25.  I will allow 1.5 units under Item 21 and 2.5 units under Item 22. 
Those Items relate to the attendance before Mr. Justice Kelleher to deal
with the costs motion.  I will allow 1 unit under Item 29, and 2 units under
Item 30 for attendance with respect to this bill of costs, but, as I said
earlier, I will only allow that Item [30] to be claimed once.  I will allow it
on this bill of costs as somewhere, somehow it has to be allowed.  And I will
allow 1 unit for item 31 – preparation for the TMC [trial management
conference] – and, under Item 32, 1 unit for attendance at that TMC.

[36]        
With respect to the trial, Ms. Voros arbitrarily – and there is no
reason why to do it one way or another – but she arbitrarily allocated three
out of the five days of trial to defending the claim against the defendant, Chen. 
Regardless, it does not really matter.  The defendants are entitled to claim a
total of five days for preparing for and attending at the trial.  On this bill
of costs, I will allow 15 units under Item 34 [preparing for trial – three days
at 5 units per day] and 30 units [10 units per day] under Item 35 here.  For
the written argument, I will allow 2 units.  And finally, for the mediation –
again at the half day rate – I will allow 1.5 and 2.5 units under Items 46
[preparation for the mediation] and 45 [attendance] respectively.  Those Items are
appropriately claimed.

[37]        
That results in a total of 74 units which, at $110 a unit, is a total of
$8,140 in tariff costs.  Added to that is seven percent PST – $569.80 – for a total
tariff costs, including tax, of $8,709.80.

[38]        
As for the disbursements, and starting with the non-taxable
disbursements, I will allow the defendants to recoup $80 for the filing fee for
this process, $16.95 for the B.C. Online searches and $32.00 for the conduct
fee for Ms. Pardo’s attendance at her examination for discovery.  Certainly
each of those disbursements was necessarily and properly incurred for the
conduct of the proceeding.

[39]        
I note that there were a number of claims of $7 for “Court Services
Online”.  However, the defendants have claimed both agent’s fees and CSO fees, for
filing the same documents charged by their agents.  They are, however, not
entitled to so-called “double dip” [see Moon v. Golden Bear Mining Ltd.,
2013 BCSC 165, at paras. 99-109].  They cannot claim both for the $7 Court
Services Online submission fee and their agent’s fee for submitting those
documents, because they could do that in-house – submit the documents
themselves and not employ an agent to submit them.  I will only allow one of
those fees – the CSO submission fee or the agent’s fees for submitting
documents.  I will, simply as a matter of simplicity, allow the agent’s fees as
opposed to the CSO fee.

[40]        
With respect to the taxable disbursements, I have reviewed them and am
satisfied that each of those disbursements was necessary and proper for the
conduct of the action.  The highest amounts claimed are for the transcripts of
the examinations for discovery.  I read the affidavits of justification before
I came into court.  I am satisfied on the basis of the evidence in those
affidavits that the plaintiff was assisted by counsel for the defendants who
ordered transcripts of the discoveries, not only for themselves but also for
the plaintiff.  The defendants claim the costs of all of those transcripts on
this bill of costs.  Had the defendants not ordered “extras” for the plaintiff,
she would either have had to order them herself or not have had the benefit of
them.  The costs of the transcripts ordered for the plaintiff and from which
she benefitted is why those amounts are the high side.

[41]        
The courier charges I find are reasonable.  When one is dealing with a
self-represented litigant, there are often extra courier charges for delivering
documents to ensure that the self-represented party has received them and to be
able to prove receipt.  There were courier charges incurred for sending
documents to Dr. Shahid [the plaintiff’s G.P.] as well.  He was not
retained until late in the day and he was retained by the defendants.  The
defendants had to courier information, instructions and, possibly, documents to
Dr. Shahid in order that he could prepare his medical-legal report in
fairly short order.  As I noted earlier, I am of the view that it was necessary
and proper to retain an expert to provide some type of medical-legal opinion with
respect to the plaintiff; her injuries, diagnosis, treatment and prognosis.  The
plaintiff herself did not retain an expert.  Dr.  Shahid was hired as a
joint expert and his fees for the medical-legal report and court preparation
and attendance are within the range of what I normally see for experts with
similar qualifications providing similar services to those provided by
Dr. Shahid.  Accordingly, I will allow those amounts as claimed.

[42]        
With respect to the mediation, the defendants seek reimbursement of half
the fee charged by Mr. Lodders for the mediation.  The mediation agreement
specifically provides for the parties to share the costs of the mediator.  I
was told that the Insurance Corporation paid the entirety of Mr. Lodders’s
costs and are only claiming back from the plaintiff one half of that mediation
fee – a fee she agreed to pay in the mediation agreement.

[43]        
However, I am going to reduce by half – to $64 – the amounts claimed for
the boardroom rental fee and the other charges for Fraser Heights Business
Centre to take into account that the parties agreed to each pay half the costs
of the mediation.  When I asked about the amount sought, Ms. Voros said
that she thought the amount on the bill of costs might be the full amount and
she has therefore agreed to reduce that amount by half.

[44]        
I am not going to allow the mileage claims.  Generally, absent special
circumstances – which do not apply here – the only time mileage is claimable is
if a party claims Item 48 of the tariff, which allows a party to claim for “travel
by a lawyer to attend at any trial, hearing, application, and the like”, where counsel’s
office is more than 40 kilometres from the courthouse.  The tariff also
provides that, where Item 48 is claimed: “In addition, reasonable travelling
and subsistence expenses are to be allowed as a disbursement.”  That is not the
case here and so I will delete those amounts.

[45]        
With respect to parking, however, I will allow the defendants to claim
for parking.  Sometimes parking is said to be an item of overhead and therefore
not claimable on a bill of costs.  However, when I take into consideration
where counsel’s office is and the fact that, during the trial, she was required
to be at the courthouse on a daily basis and had no other means of transporting
herself to and from the courthouse, parking becomes a necessary and proper
expense and I will allow the amounts claimed here for parking.

[46]        
As for the two $7 BC Online fees claimed for the “corporate summaries”, I
am not sure what these were for or why it was necessary to incur these fees. 
It might be one of those double countings I referred to earlier but I cannot be
certain.  However, as there is no evidence as to the necessity or propriety of
these disbursements, I will disallow them.

[47]        
In general, the balance of the disbursements is reasonable and I will
allow them as claimed.  However, for the reasons noted earlier, I will delete the
mileage on page 7.

[48]        
Any idea how I can get these added up quickly, Ms. Voros, with the
changes?

[49]        
MS. VOROS:  No, actually I missed – I’m sorry, I was trying to write as
we were going, but I – when you were talking about the non-taxable
disbursements.

[50]        
THE REGISTRAR:  I awarded $128.95 total for the non-taxable
disbursements.  So let’s subtotal the non-taxable and add the taxable
disbursements to that amount, plus tax, yes?

[51]        
MS. VOROS:  Thank you.

[52]        
THE REGISTRAR:  So $9,819.55.  HST on that amount is $1,178.35.  And
then the disbursements that attract GST – I have actually reduced them by
$35.72 – so we have a new total of $107.62 for those disbursements that attract
GST.  I’ll add 5 percent to that – $5.38.  Now total disbursements – I get a
total of $11,239.85.  How can I get more than you claimed?

[53]        
MS. VOROS:  I don’t know.  It’s too bad my calculator decided to die on
me just now.  I don’t know.

[54]        
THE REGISTRAR:  I see. It’s because you forgot to add the tax on the
totals.  You did not add it correctly.  Your total should have been, just to
let you know, $11,685.51, because the amount that you have put here for total
disbursements is the amount before the tax was added, Ms. Voros.  It is
one of the reasons why you should always add these things and check your math.

[55]        
Anyway, the total of the disbursements allowed is $10,056.12; then plus
$5.38 GST and $1,178.35 HST, is a total of $11,239.85.  I then must add to that
amount the tariff costs of $8,709.80.  I get a total of $19,949.65.

[56]        
Now, with respect to the Young matter, again, I will not specifically
review the tariff items, I will simply give you my numbers.

[57]        
I will allow 5 units under Item 2; 1 unit under Item 3; 1 unit under Item
7; and 2 units under Item 11 because the documents are different for this
action from the other.  The notice to admit – 2 units are allowed, again
because of its comprehensive nature and the fact that it encompassed both the
First and Second Actions.  You, however, will get nothing for the expert.

[58]        
On this bill, I will allow 3 units for Item 18 – the witnesses.  In this
action [the Second Action], the witnesses were the defendants, who do not
count, their daughter, and two estimators.  The defendants do not count but the
others do.  I will allow 1 unit for each of those other witnesses for a total
of 3 units.  Also, I’ll award 2 units for Item 19 and 4 for Item 20 for the
costs of the plaintiff’s examination for discovery.  I am deleting Item 23 as
before.  I am allowing 1.5 for Item 21 and 2.5 for Item 22.  One for Item 29;
but zero for item 30 because there has only been one actual attendance to
assess costs and I have allowed units for that on one of the other bills of
cost.

[59]        
I will also allow 1 unit under Item 31 for preparing for the trial
management conference and 1 unit [Item 32] for attending at it.  And then the
remaining two days of trial have been claimed on this bill of costs – I’ll
allow 10 units and 20 units under Items 34 and 35 respectively.  One unit for
setting the proceeding down for trial, and the mediation – this is for the balance
of the mediation – the other half day – so the defendants should be awarded 2.5
units under Item 45 and then 1.5 units under Item 46.

[60]        
That results in a total of 62 units which, at $110 a unit, comes to $6.820. 
Seven percent [PST] on that is $477.40, for a total for the tariff costs of $7,297.40.

[61]        
The non-taxable disbursements will be reduced by $14 for the duplicative
court services online fees and they will therefore be allowed at $312.  The
agent’s fees are allowed at $75.50 and then again at $49.34.  So the only
difference here is a reduction of $14.

[62]        
I am sorry, but I do not trust Ms. Voros’ math at the moment, so I
will do it myself to be sure of the total.  I get total disbursements of $448.37. 
You made the same mistake, counsel; you did not add in the tax again on this
bill, just to let you know.

[63]        
I come up with $448.37 total disbursements, including tax, plus
$7,297.40 in tariff costs for a total $7,745.77.

[64]        
Do you have certificates, or what do you want to do, Ms. Voros?

[65]        
MS. VOROS:  No, I don’t have any certificates.

[66]        
THE REGISTRAR:  That is fine.  You can submit them.

[67]        
MS. VOROS:  But I will submit them.

[68]        
THE REGISTRAR:  Just to let you know, when you get your hearing records
back, I have taken out the bills of costs because that is where I made my notes. 
I intend to keep those notes and if there are any questions, I will have them available
to review.  All right.

[69]        
MS. VOROS:  All right.  Thank you.  I apologize for complicating it by
having the three separate bills of costs.

[70]        
THE REGISTRAR:  Then you made those mistakes in math.

[71]        
MS. VOROS:  Yeah, I don’t know how that happened.

[72]        
THE REGISTRAR:  Just a reminder how important it is to check your work
before you come to court.  Thank you.

[73]        
MS. VOROS:  Thank you.

“Registrar Sainty”