IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20131202

Docket: S86757

Registry:
Kelowna

Between:

Deana
Babb

Plaintiff

And

Jason
Doell, Peter’s Bros. Construction Ltd.
and Inland Contracting Ltd.

Defendants

Before:
Master R.W. McDiarmid

Reasons for Judgment

[1]            
This is a review of a party/party bill of costs following settlement of
a claim involving injuries resulting from a 2008 motor vehicle accident. The
plaintiff, who had sustained injuries in a fall in 2006, sustained further
injuries in the 2008 motor vehicle accident.

[2]            
At the commencement of the review, I was advised by both counsel that
all tariff items had been agreed to, and all disbursements were also agreed to,
except for two – a claim by the plaintiff for interest on disbursements and a
claim by the plaintiff for reimbursement for accounts rendered by Dr. Donald
Cameron, a neurologist with an expertise in the diagnosis and treatment of
headaches.

[3]            
This matter was set for trial on May 6, 2013. Arrangements had been made
for Dr. Cameron to testify by video-conference as the first witness at the
commencement of the trial on May 6, 2013.

[4]            
Late in the afternoon on May 3, 2013, counsel were advised that no judge
would be available to hear the trial, the trial having been “bumped” by a
criminal matter which took precedence. The trial was re-set for June 10, 2013.
The plaintiff’s claims were settled after business hours on June 7, 2013.

[5]            
At the commencement of submissions, I raised the fact that I had no
evidence before me, such as was present in Franzman v. Munro, 2013 BCSC
1758, to base a claim for interest on disbursements. I did not have a copy of
the fee agreement, nor did I have any evidence from the plaintiff or about her
financial situation. Plaintiff’s counsel offered to take the stand to testify
as to the fee agreement, but I felt the better course was to direct that a copy
of the fee agreement be attached to an affidavit, the affidavit copied to
defendants’ counsel with liberty for the parties to make further submissions
after reviewing the agreement.

[6]            
On October 16, 2013, I received a copy of an affidavit made and filed
that day by Valerie McGarvie, paralegal with the lawyers who represented the
plaintiff attaching a contingency fee agreement signed by the plaintiff and Mr.
Einfeld as her counsel. That fee agreement contained an agreement to pay
interest on all disbursements at the interest rate of 15% per annum. It
included a term “which interest shall be considered disbursement for the
purposes of this Agreement.”

[7]            
The affidavit also contained a calculation of interest on the
disbursements, calculated at 6% for the period of July 21, 2008 to June 13,
2013. The disbursements total $23,430.88. The interest was calculated at
$1,693.15.

[8]            
The starting point for any assessment of disbursements pursuant to Rule
14-1 of the Supreme Court Civil Rules is subrule (5) as follows:

(5) When assessing costs under subrule (2) or (3) of this
rule, a registrar must

(a) determine which disbursements have been necessarily or
properly incurred in the conduct of the proceeding, and

(b) allow a reasonable amount for those disbursements.

[9]            
In order for an amount to be allowed for a disbursement it must be
either necessary or proper. As set out by Justice Arnold-Bailey in Zaenker
v. Kirk, 2008 BCSC 1460, necessary disbursements are essential
disbursements, which is to say they are outlays that could not be avoided in
the conduct of the proceeding. Proper disbursements are disbursements reasonably
incurred in the conduct of the proceeding, but strictly speaking avoidable.

[10]        
The onus of proving whether a disbursement is either necessary or proper
is on the party claiming that disbursement. A useful summary of the principles
which bind me sitting as registrar in assessing disbursements has been provided
by defendants’ counsel in paragraphs 14 to17 of her submissions:

14.       In the case of Bell v. Fantini, 1981 BCJ
1268, at paragraph 21, Justice Legg stated that the registrar must consider the
facts of the case and determine whether the disbursements were reasonably
incurred and justified.

15.       The decision of Varga v. Shin, 2013 BCSC
1643, at paragraph 39, outlines that the party asking for the disbursements
must prove that the expense was necessary.

“It is up to the party claiming
the disbursement (the plaintiff in this case) to prove entitlement to a
disbursement on a balance of probabilities (See Deo v. Chang, 2005 BCSC 1335
(CanLII) … and to provide evidence to the assessing officer as to why the
expense was incurred: Guelko v. Hallett (1990 21 A.C.W.S. (3d) 164 (B.C.S.C.).”

16.       The Defendant submits that the Plaintiff must show
that the report of Dr. Cameron was reasonable at the time the expense was
incurred.

17.       The Registrar in Varga
v. Shin, 2012 BCSC 1643, at paragraph 43, states that “whether to allow
the costs of this report must be judged by the situation at the time the
expense was incurred: Van Daele v. Van Daele 1983 CanLII 720 (BC CA).”

INTEREST

[11]        
A claim for interest by a party entitled to costs might in some
circumstances be characterized as necessary, for example, in a situation where
the incurring of disbursements such as filing fees or daily hearing fees could
only be done by obtaining some funding. Interest could also be a proper
disbursement when it was reasonably incurred in the conduct of the proceeding
even if, strictly speaking, avoidable. In Franzman, evidence was led
which satisfied me that the disbursement interest which the plaintiff agreed to
pay to her lawyers as part of a fee agreement was proper and I allowed, as a
disbursement, the amount of interest calculated at 6%.

[12]        
Most written retainer agreements contain provisions for payment of
interest on unpaid accounts. Many retainer agreements contain provisions which
are binding as between lawyer and client, for the payment of some disbursements
at a rate higher than the rate allowed by registrars when assessing party/party
costs. Even in contingency retainer agreements, plaintiffs often agree to and
have the means to pay disbursements and do so.

[13]        
Unlike in Franzman and in Chandi (Guardian ad litem) v. Atwell,
2013 BCSC 830, the decision relied on by the plaintiff, there is no evidence
before me to assist in me establishing either the necessity or the propriety of
the plaintiff’s claim for interest.

[14]        
As noted above, the onus of proving either the necessity or propriety of
disbursements is on the party claiming those disbursements. Absent such
evidence, I am unable to make a determination that the interest claimed was
either necessary or proper. Accordingly, the claim by the plaintiff for
interest is denied.

DR. CAMERON’S ACCOUNTS

[15]        
The defendants argue that on the facts of this case, the use of a
neurologist was not necessary and therefore not a reasonable and justified
disbursement.

[16]        
In order to determine whether or not the plaintiff, through her lawyer,
ought to have retained Dr. Cameron, I am required to examine the situation at
the time Dr. Cameron was retained.

[17]        
At that point, the plaintiff had been treated by her family doctor, Dr.
Sarbit, by an orthopaedic surgeon, Dr. Hawkins and by a physiatrist, Dr.
Vallentyne, all of whom had assessed her and provided reports.

[18]        
Attached to the McGarvie affidavit were medical reports from Dr. Stephen
Vallentyne dated June 29, 2009 and February 6, 2013, and reports from Dr. Dani
Sarbit dated August 30, 2010 and February 4, 2013.

[19]        
Attached to the affidavit of Lisa Tezram sworn and filed October 13,
2013, who deposes to being a paralegal working under the direction of counsel
for the defendants, are copies of the clinical records from Tutt Street Family
Medicine relating to July 24, 2008, September 18, 2008 and October 30, 2008
visits, a copy of clinical records of Dr. M. Thiel from May 10 to September 5,
2006, a copy of the clinical records of Dr. Pereverzoff from July 24 to
December 22, 2008, a copy of the Insurance Corporation of British Columbia
CL-19 medical report completed by Dr. Rishi dated November 4, 2008, and a copy
of the report of Dr. Hawkins dated July 10, 2009.

[20]        
Keeping in mind the issue of whether it was proper on November 5, 2012,
to retain Dr. Cameron to conduct a neurological assessment, I have disregarded
the reports of Dr. Vallentyne dated February 16, 2013 and Dr. Sarbit dated
February 4, 2013 as they do not assist me in determining the state of affairs as
at November 5, 2012.

[21]        
Dr. Vallentyne’s report confirms that he is a physiatrist. In his report
he sets out some history which included a fall injury sustained by the
plaintiff in 2006. He reviews a report by Dr. Pereverzoff, the plaintiff’s
chiropractor, which indicated she was troubled by a chronic left shoulder pain
dating back 20 years for which she received chiropractic care. Dr. Vallentyne
details some of the difficulties being reported by the plaintiff pre-2008. He
details some other potential medical issues in a recitation of “Past History”
on page 10 of his report. On page 19 of his report, he notes that on October
30, 2008, Dr. Sarbit had recorded that “Ms. Babb was no longer having
headaches.”

[22]        
In his executive summary, under the heading “Basis of Opinions”
on page 3, he makes a comment about symptomatology as follows:

After the 2008 MVC, Ms. Babb
reported that she developed (a) headaches, neck pain, left shoulder pain, and
fatigue as well as (b) recurrent low back pain with lower limb tingling.

[23]        
Dr. Sarbit is a family physician. In his August 30, 2010 report, Dr.
Sarbit details the medical issues facing the plaintiff pre-accident. She
comments on a September 18, 2008 visit as follows:

She had been seeing a
physiotherapist, which had been helping some of the aching in her buttocks and
some ongoing headaches. She was still only able to perform light duties around
her house for no longer than 30 minutes at a time before needing to lie down
for a break.

[24]        
In relation to an October 30, 2008 visit, Dr. Sarbit writes:

Ms. Babb came to review the
iQuest suggestions and to update me on her symptoms. Her headaches were now
gone.

[25]        
The clinical notes of Tutt Street Family Medicine for October 30, 2008
confirms:

Neck getting better no more H/A’s.

[26]        
The clinical record dated May 10, 2006 contains a notation as follows:

HA – temporal 2-3 x wk takes
Ibuprofen [illegible]

[27]        
Dr. Thiel is a chiropractor. Part of what was attached to the Tezram
affidavit as exhibit B is a letter from him apparently to the plaintiff dated
September 19, 2006, approximately four months after the headache referencing note
I referred to which was dated May 10, 2006. In the September 19, 2006 letter,
Dr. Thiel writes:

It is my clinical opinion that
the discomfort you are experiencing as described in your history on May 10,
2006 are the result of advancing degenerative disc and degenerative joint
pathologies at the level of C5, 6, 7. I feel your ailment is from degeneration,
not trauma.

[28]        
Dr. Hawkins, an orthopaedic surgeon, sent a medical/legal report to
plaintiff’s counsel on July 10, 2009. In that report, Dr. Hawkins comments on
the degenerative disc disease, and comments on the causation of the neck and
left shoulder problems the plaintiff was developing in June of 2008, following
what he describes as a “rear-ending motor vehicle accident”. He does not
comment on the cause of headaches, although on page 6 of his report, part of
Appendix A to it, the history as provided by the plaintiff, he writes:

She is experiencing ringing in
her ears, which she never had before. She cannot recall when this started. She
is also having headaches two to three times per week. She does take two pain
killers per day, which are over-the-counter anti-inflammatories. Additionally,
she uses magnets taped to the back of her neck. She says that these get rid of
the headaches 99%.

[29]        
From all of this, I find that by November 5, 2012, the plaintiff had
reported, with some consistency, headaches she was suffering from after the
June 2008 motor vehicle accident. She also had disclosed documentation from a
chiropractor, written two years prior to the motor vehicle accident, which
opined that the headaches she was experiencing at that time in 2006 were the
result of advancing degenerative disc and degenerative joint pathologies. At
that point, the chiropractor opined, “I feel your ailment is from degeneration,
not trauma.”

[30]        
The test is whether or not at the time the expert was retained it was
proper to retain him. The evidence set out in an affidavit of Valerie McGarvie
made and filed September 25, 2013, deposes in paragraph 6 the following:

6.         Our office retained Dr. Donald
Cameron, to conduct a neurological assessment of the Plaintiff on November 5,
2012. The purpose of this assessment was to investigate and provide an opinion
as to the cause, prognosis and treatment of the Plaintiff’s ongoing headaches.
Dr. Cameron is duly qualified to provide such an opinion as he is an Assistant
Professor of Neurology at UBC and is the Head of the Division of Neurology at
the Lions Gate Hospital. Additionally he is recognized as being one of the
leading specialists in B.C. on headaches.

[31]        
In order for the plaintiff to obtain proper compensation for the
sequelae of her injuries, she must prove that those injuries result from the
motor vehicle accident. Neither the physiatrist nor the orthopaedic surgeon had
expertise in the causation of headaches.

[32]        
Given the state of the evidence assembled by plaintiff’s counsel at that
point, several months before the scheduled trial date, it seems to me that the
plaintiff would have had considerable difficulty establishing, on a balance of
probabilities, that the headaches she had experienced in 2008 were causally
connected to the motor vehicle accident. This is especially so in the face of
an opinion that the headaches she had been suffering two years were, in the
opinion of her treating chiropractor, the result of something other than
trauma.

[33]        
I find that it was reasonable and proper to obtain a report from a
headache expert such as the neurologist, Dr. Cameron, so that the plaintiff and
her lawyer could determine whether or not the headaches she was experiencing
post-accident were causally connected to the accident, or whether they were as
a result of something else, such as pre-existing degeneration.

[34]        
I find that at the time the neurologist, Dr. Cameron, was retained, his
retention was a proper thing to do in that retaining him and paying him the
fees he charged was something which was reasonable for the plaintiff, through
her lawyer, to do in the conduct of the litigation.

[35]        
As it turned out, counsel was justified in getting the plaintiff
assessed by Dr. Cameron. In his report dated December 19, 2012, on page 6, at
the conclusion of paragraph 37, Dr. Cameron writes:

It is my opinion that these
headaches are musculokeletal or cervicogenic headaches associated with the neck
pain that Ms. Babb has suffered with as a result of soft tissue and
musculokeletal injuries to her head and neck area sustained at the time of this
accident.

[36]        
There was no evidence led to suggest that Dr. Cameron’s initial account
was unreasonable. The basis for it has been set out before me.

[37]        
Similarly, the cancellation fee was unavoidable. That disbursement was,
in my view, a proper disbursement reasonably incurred.

[38]        
Dealing next with the reasonableness of those disbursements, it has
often been written that a registrar assessing these sorts of disbursements must
bear in mind that to a great extent, the expert charges what the expert
charges, and unless there has been excessive zeal in the scope of the
instruction given, such that the expert extravagantly incurs more time and thus
charges a greater fee than might be normally expected, registrars should be
reluctant to interfere. This is all a more so in conducting these reviews.
Registrars are, in a general way, aware of the range charged by experts,
including in particular medical experts.

[39]        
There has been no evidence led by the defendants to suggest that the
fees charged were excessive.

[40]        
The accounts of Dr. Cameron in the amount of $3,398.00 and in the amount
of $3,213.46 were proper and are allowed in full.

“Master
R.W. McDiarmid”

MASTER MCDIARMID