IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20131218

Docket: M104736

Registry:
Vancouver

Between:

Khaled Jaid

Plaintiff

And

Jose Felix Emilio
Chavez

Defendant

– and –

Docket: M104737

Registry:
Vancouver

Between:

Khaled Jaid

Plaintiff

And

James William
Armstrong

Defendant

– and –

Docket: M131233

Registry:
Vancouver

Between:

Khaled Jaid

Plaintiff

And

Feng Yin and Yin
Yin

Defendants

Before:
Registrar Sainty

Reasons for Decision

BACKGROUND

[1]            
The parties appeared before me on November 5, 2013 to assess the plaintiff’s
costs in respect of three actions, all related to motor vehicle accidents
involving the plaintiff.

[2]            
The first accident occurred on November 9, 2008 (“Accident No. 1”). 
In that accident, the plaintiff suffered injuries to his neck, shoulder, upper
and lower back, left arm, left elbow and left hand and fingers.  Accident No. 1
also affected the plaintiff’s mental state in that, following that accident,
the plaintiff suffered from fear of driving, anxiety, anger, stress, emotional
trauma, worry and had problems sleeping.

[3]            
The plaintiff filed a notice of civil claim in respect of Accident No. 1
(Jaid v. Chavez, BCSC Vancouver Registry, Action No. M104736) on September
29, 2010 (“Action No. 1”).  The defendant filed a response to that claim
on January 17, 2011, denying liability for the accident.

[4]            
The second motor vehicle accident occurred on August 17, 2009 (“Accident
No. 2”).  In that accident, the plaintiff suffered new injuries to the top
of his head and left side of his stomach but also aggravated the injuries he suffered
in Accident No. 1 (except for those associated with his left arm). 
Additional effects of Accident No. 2 were headaches, pain in his stomach,
emotional trauma, further increased stress, anxiety and depression.

[5]            
The plaintiff also filed his notice of civil claim in respect of
Accident No. 2 (Jaid v. Armstrong, BCSC Vancouver Registry, Action No. M104737)
on September 29, 2010 (“Action No. 2”).  The defendant filed a response to
that claim on January 17, 2011.  The defendant also denied liability for
Accident No. 2.

[6]            
The third motor vehicle accident occurred on January 3, 2013 (“Accident No. 3”). 
That accident aggravated the plaintiff’s injuries to his head, neck, shoulders,
upper, mid and lower back and left leg and exacerbated his fear of driving,
headaches, anxiety and depression.

[7]            
The defendants in Actions No. 1 and 2 filed a notice requiring trial
by jury on January 16, 2012.

[8]            
The plaintiff filed a notice of civil claim in respect of Accident No. 3
(Jaid v. Yin and Yin, BCSC Vancouver Registry, Action No. M131233) on
February 26, 2013 (“Action No. 3”).  The defendants’ response to that action
was filed on March 18, 2013.  As with Accidents No. 1 and 2, the defendants
in Action No. 3 denied liability for that accident.

[9]            
The trial of these matters – set to be heard together – was scheduled to
commence on June 24, 2013 for seven days.  On February 18, 2013, the defendants
in Actions No. 1 and 2 amended their responses to civil claims and admitted
liability for Accidents No. 1 and 2.

[10]        
Liability for Accident No. 3 remained a major issue at all times.

[11]        
The parties agreed to attempt mediation and a mediation was held on
April 17, 2013.  The plaintiff initially sought damages of $215,816 plus assessable
costs and disbursements; he settled his claims in respect of all three Actions
at mediation for the sum of $50,000 plus assessable costs and disbursements.

THE HEARING

[12]        
The parties were unable to agree on the costs and disbursements and the
plaintiff filed appointments in all three of the actions for assessment of his
costs.  The parties first appeared before me on November 4, 2013 to conduct a
pre-hearing conference in respect of the assessments of costs.  I advised them
at that pre‑hearing conference that I was concerned about the time
estimate for hearing all three appointments (2 hours in total) and urged them
to try and settle matters or, at the very least, narrow their focus.

[13]        
When the parties arrived for the actual assessment on November 5, 2013,
they advised me they had reached an agreement in respect of the tariff items
and that the plaintiff would be entitled to 108 units for all three of the
Actions which, at $110 per unit, resulted in the plaintiff being awarded tariff
costs of $11,880 plus taxes (GST and PST) totalling $1,425.60.  Thus, by
consent of the parties, the plaintiff’s tariff costs (inclusive of taxes) amount
to $13,305.60.

[14]        
After being advised that the parties had agreed on the tariff costs and
confirming the amounts for the record, we then turned to the matters in dispute
– the plaintiff’s disbursements which, as set out in the (revised) bill of
costs presented to me at the hearing, were claimed at a total of $55,497.64
inclusive of taxes.

[15]        
When I concluded the disbursements portion of the hearing, I began
giving oral reasons.  First, I noted and commended counsel for the agreements
made between them in respect of certain so-called “administrative disbursements”:
filing fees, photocopies, postage facsimiles and the like which often take up
an extraordinary amount of time on an assessment.  Secondly, I noted that the
main issues on this assessment related to the fees of the various experts.

[16]        
I then began giving my oral reasons on the disputed disbursements and ruled
in respect of one matter – the plaintiff’s claim for $31 in agent’s fees for
each of the three appointments filed (one in each action) to assess the
plaintiff’s costs.  I held that these costs were excessive as $4.75 was charged
by the agents to write a cheque (which counsel could do), and there were duplicative
costs for attending at various registry counters for each appointment when all
were (most likely) presented and filed at the same time.  Accordingly, I
reduced the $93 (total) charged, to a total of $26.25 made up of $14.50 to
confirm the appointments were, in fact, set on the list plus a further $11.75 to
file them all.

[17]        
After making that decision, I concluded that I needed additional time to
consider the balance of the disbursements – the costs of various experts’
reports and MRIs undergone by the plaintiff.  I therefore stood the hearing
down for a period of time to further review the materials and consider the
parties’ submissions.  Following a brief (30 minute) adjournment, I advised
the parties that I intended to reserve my decision with respect to this
matter as I felt that it deserved more than cursory consideration by me.  These
reasons now reflect that reserved decision.

[18]        
The disbursements at issue are as follows:

THE PARTIES’ POSITIONS

The Plaintiff

[19]        
In general, the plaintiff argues that each of the listed disbursements
were necessary and proper to the conduct of the proceeding and that the amounts
charged for such disbursements are reasonable in the circumstances
(see Rule 14‑1(5) of the Supreme Court Civil Rules).

The Defendants

[20]        
The defendants argue that many of the disbursements were neither
necessary nor proper and were incurred by the plaintiff (or his counsel) out of
an abundance of caution or excessive zeal and, therefore, ought to be
disallowed (see Bell v. Fantini (1981), 32 B.C.L.R. 322 (S.C.)).

[21]        
More particularly, the defendants argue that much of the plaintiff’s case
and the commissioning of all of the experts was built on what was an error in
judgment on the part of Dr. Cameron, a neurologist retained by the plaintiff
who, in addition to considering the plaintiff’s neurological health, suggested
that the plaintiff might be suffering from PTSD.  Mr. Fong, counsel for
the defendants, referred me to certain paragraphs of Dr. Cameron’s report
wherein he opines:

Opinion

19.       Following
my neurological assessment of Mr. Khaled and following my review of the
medical records and clinical documents, it is my opinion that Mr. Khaled
suffered soft tissue and musculoskeletal injuries to his neck and back
sustained at the time of the motor vehicle accident of November 9, 2008. It is
my opinion that Mr. Khaled suffered exacerbation of chronic back pain
which had been present following the 2004 motor vehicle accident. His family
physician documents in his clinical records that Mr. Khaled was continuing
to suffer with chronic back pain shortly before the motor vehicle accident of
November 9, 2008.

20.       It is
my opinion that Mr. Khaled did not suffer injury to his central nervous
system or his peripheral nervous system at the time of the motor vehicle
accident of November 9, 2008. Any complaints of numbness of his left arm
following this accident would probably be due to irritation of sensory nerves
serving the upper extremities due to muscle spasm present as a result of soft
tissue and musculoskeletal injuries to the neck and shoulders that he would
have sustained at the time of the motor vehicle accident of November 9, 2008. Mr. Khaled
did not indicate to me that he suffered with numbness or tingling of either
upper extremity following either one of these motor vehicle accidents. However,
the clinical records particularly the physiotherapy notes document that he
complained of numbness of the left upper extremity following the first
accident. In my opinion, this is not due to injury of a cervical nerve root or
peripheral nerve but rather irritation of sensory nerves serving the left upper
extremity due to muscle spasm in the shoulders and base of the left side of his
neck.

21.       Mr. Khaled
entered into a supervised rehabilitation program at the request of his family
physician. Despite this, he continued to suffer with neck pain and back pain
when he was involved in the second motor vehicle accident of August 17, 2009.
It is my opinion that Mr. Khaled suffered with exacerbation of head pain,
neck pain and back pain as well as left shoulder pain as a result of soft
tissue and musculoskeletal injuries that he sustained at the time of the August
17, 2009 motor vehicle accident. It is my opinion that Mr. Khaled did not
suffer injury to his central nervous system or his peripheral nervous system at
the time of the August 17, 2009 motor vehicle accident.

22.       Mr. Khaled
reported to me that he had problems with memory following the first accident
and that his memory problems increased in degree or deteriorated over time
following this accident. It is my opinion that Mr. Khaled’s complaints of
memory dysfunction are not due to injury to his central nervous system but
rather that his memory problems are due to pain and discomfort present as a
result of soft tissue and musculoskeletal injuries that he sustained at the
time of these two motor vehicle accidents, and also due to the fact that he
has suffered with a post traumatic stress disorder and depression. I would
defer to the specialists in psychiatry and/or psychology such as Dr. Riar
to provide an opinion regarding the ongoing post traumatic stress disorder,
psychological dysfunction and depression and its long-term prognosis. The
medical records of the family physician do document Mr. Khaled as
suffering with depression prior to these two motor vehicle accidents.  It is
therefore probable that he suffered with exacerbation of psychological
dysfunction as a result of the injuries that he sustained at the time of the
accident. It is also probable that Mr. Khaled’s marriage break-up has been
a significant contributing factor to his psychological state.

[Emphasis
added.]

[22]        
The defendants say it was inappropriate of Dr. Cameron to make any
findings in respect of PTSD, an area in respect of which he has no expertise.  The
defendants note that the plaintiff had a psychiatrist (Dr. Riar) who was
the expert who ought to have opined on that subject.  The defendants note that Dr. Riar
did not find PTSD or says that if there is any PTSD, it is mild, at best.  They
argue, therefore, that most of the plaintiff’s case in this matter was built on
a shaky foundation: Dr. Cameron’s finding in his report that the plaintiff
appeared to be suffering from PTSD.  Consequently, the defendants argue that the
costs of the experts’ reports, which built on that shaky foundation, were
improper and ought to be disallowed.

[23]        
The defendants also suggest that it ought to be of note to me that the
plaintiff was in an accident in 2004 in which he suffered injuries to his back,
neck, shoulder and the like and which left him with some residual (permanent)
damage to those areas.  The issue (as noted by plaintiff’s counsel) was how
much of the plaintiff’s injuries in these three accidents were divisible or
indivisible from the lingering (and permanent) effects of the injuries sustained
by the plaintiff in the 2004 accident.  The plaintiff settled his claims in
respect of that 2004 accident for an excess of $120,000 in damages (or there
about – my notes on the matter are somewhat unclear; however it was a not
insignificant amount).

[24]        
This series of accidents, starting with Accident No. 1, moving to
Accident No. 2 and culminating in Accident No. 3, aggravated those
pre-existing injuries but, as noted by Mr. Fong, his damages were only
going to be for aggravating those injuries.  It was, he says, out of proportion
to what was at stake in this litigation – damages for aggravating the injuries
sustained in the 2004 accident – to engage so many experts in an attempt to
have the plaintiff declared to be permanently disabled when none of the experts
who ought to have opined on that (Dr. Riar (as to the plaintiff’s
psychiatric injuries), Dr. Shuckett (as to his rheumatic injuries) and Dr. Cameron
(as to his neurological injuries)) found that the plaintiff had been
permanently disabled as a result of the First or Second Accident.  Specifically,
the defendants point to:

(a)      Dr. Riar’s first
report of July 26, 2009, wherein he opined that, while the plaintiff’s
short-term prognosis was guarded, his “long-term prognosis for psychiatric
problems is favourable”;

(b)      Dr. Riar’s second
report (January 17, 2011) wherein he notes:

On the issue of disability, I felt that Mr. Jaid was at
least partially disabled due to psychiatric symptoms of anxiety, depression and
chronic pain. As far as Mr. Jaid’s psychiatric short-term prognosis, that
is for the next four to six months is concerned, this is guarded but with
intervention his functioning can be improved. Overall, Mr. Jaid’s
long-term prognosis is favourable

(c)      Dr. Shuckett’s report
of January 31, 2011, wherein she opines that:

It is hard to prognosticate in this case due to the
superimposition of physical and emotional, psychosocial issues

Having said that, however, she does
not state that the plaintiff is in any way permanently disabled; only that she
believes there is still room for improvement.

(d)      Dr. Cameron’s report wherein, at
paragraph 18, Dr. Cameron confirms that the plaintiff’s neurological
examination produced “normal” results.

REVIEW AND ANALYSIS

[25]        
The test for determining whether a disbursement ought to be
allowed 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. (Van Daele v. Van Daele, [1983]
B.C.J. No. 1482; 56 B.C.L.R. 178 (C.A.) (at para. 11)).

[26]        
The provisions of Rule 14-1(5) of the Supreme Court Civil
Rules relating to the Registrar’s discretion to award disbursements are
broad.  In general (see Bell v. Fantini, [1981] B.C.J. No. 1268; 32
B.C.L.R. 322, at para. 23):

…The Registrar must consider all
the circumstances of each case and determine whether the disbursements were
reasonably incurred and were justified. He must be careful to balance his duty
to disallow expenses incurred due to negligence or mistake, or which are
extravagant, with his duty to recognize that a carefully prepared case requires
that counsel use care in the choice of expert witnesses and examine all sources
of information and possible evidence which may be of advantage to his client.

[27]        
These are the basic tenets that I must keep in
mind in determining whether to allow or disallow the plaintiff to be reimbursed
the costs of a disbursement.

Canadian Magnetic Imaging re MRI Exam April 20, 2011

[28]        
Dr. Shuckett, a rheumatologist (whose fees are not at issue in this
matter) saw the plaintiff on January 26, 2011 for the purposes of an
independent medical examination to offer a rheumatology opinion in respect of Accidents
No. 1 and 2.  In her report dated January 31, 2011, Dr. Shuckett
notes that the plaintiff has headaches, neck pain, left shoulder pain, upper
and mid-back pain, low back pain, and left arm and hand symptoms.  She also
notes that the plaintiff complains of depression and insomnia.

[29]        
In her report Dr. Shuckett states:

I feel that he [the plaintiff]
should undergo an MRI of his lumbar spine to rule out disc herniation in light
of his left leg symptoms, albeit they do not follow a clear nerve root
distribution. I will enclose a form for an MRI of the low back. The MRI results
may have some impact on his prognosis.

[30]        
The MRI recommended by Dr. Shuckett was performed on April 20, 2011,
who was then asked to provide a further opinion in relation to the findings of
the MRI.  Dr. Shuckett’s further opinion was provided on May 9, 2011.  In
that opinion, Dr. Shuckett suggests that the plaintiff has underlying
osteoarthritic changes or degenerative changes in his low back.  Specifically,
with respect to the MRI, Dr. Shuckett states:

Most of these findings on the
MRI, in my view, were probably pre-existing and are not related causally to the
subject MVA.

[31]        
The question first to be answered is whether or not the disbursement
itself was necessary or proper.

[32]        
There have been a number of cases recently dealing with the issue
of the necessity, propriety and subsequent reasonableness of MRI scans.  In Phelan
v. Newcombe, 2007 BCSC 714, Registrar Blok (as he then was) denied a
plaintiff’s claim for the costs of an MRI scan.  In making his decision, the
Learned Registrar says (at paras. 16 and 17):

…In general, disbursements that are incurred based on
reasoning that is equivalent to “just in case” or “you never know” will not be
found to have been reasonably incurred or, to put it another way, they will be
found to be extravagant or the result of excessive caution or zeal.

I should add that the mere fact
that a physician has recommended that an MRI scan be done will not guarantee
its recovery as a disbursement. For the most part, diagnostic imaging will be a
medical matter (and any private medical costs would fall under special damages)
and its role as an aid in litigation will be relatively narrow.

[33]        
In Parotta v. Bodnar, 2006 BCSC 787, it was confirmed that MRIs
are often ordered for more than one purpose: treatment and diagnosis.  If an
MRI is ordered for treatment purposes only, it must be said that it is an item
of special damages and not recoverable on an assessment of costs.  If ordered
for diagnostic purposes, then it may be said to be a necessary or proper
disbursement and recoverable.  It then remains to be determined whether the
cost of the particular MRI was “reasonable”.

[34]        
I am satisfied on the evidence before me that, in this case, the MRI was
ordered for the purposes of assisting Dr. Shuckett to determine the nature
and extent of the plaintiff’s injuries.  Thus it was ordered to assist with
diagnosis and was necessary for the purposes of the litigation.

[35]        
Was the cost of it reasonable?  The onus is on the plaintiff to
establish that the amount claimed for a disbursement is reasonable.  In
instances where it may have been possible to obtain an MRI scan through the
public health care system, registrars have held that the costs of a private MRI
are not reasonable and have disallowed them (see, for example: Jalili v. Ma,
2013 BCSC 1420 (Registrar); Repnicki v. 616696 B.C. Ltd., 2013 BCSC 1421
(Registrar); and Kumanan v. Achim, 2013 BCSC 1867 (Registrar)).

[36]        
In his affidavit in support of the bill of costs, Mr. Kancs,
counsel for the plaintiff, deposes that:

As a result of Dr. Shuckett’s
recommendations in her medical report of January 31, 2011, arrangements were
made for an MRI scan of the Plaintiff’s lumbar spine.

[37]        
The MRI was ordered fairly shortly after Dr. Shuckett’s first
medical report was received by plaintiff’s counsel.  The plaintiff remained
symptomatic for some two years post-accident, and it appears Dr. Shuckett
felt that the MRI results could assist her in opining on the plaintiff’s
prognosis.

[38]        
I was not given any particular evidence as to how long it might have
taken for the plaintiff to have undergone an MRI through the “public” as
opposed to the “private” healthcare system in this province; however, I believe
that I can confirm that, generally speaking, obtaining an MRI through the
public system takes an absolute bare minimum of three to six months, to a
maximum of 12 to 18 months.

[39]        
In my view, in the particular circumstances of this case – where the plaintiff
remained symptomatic; Dr. Shuckett felt she needed an MRI to assist her in
opining in respect of the plaintiff’s prognosis; and the MRI was ordered in
short order after being recommended – I find that it was reasonable to order
the MRI and have it paid for privately.  The amount charged for the MRI ($995) is
certainly within the amounts I usually see for MRIs done privately.  Relying on
my experience in matters of this nature (as I am entitled to do: see Narvaez
v. Zhang, 2010 BCSC 78 and Hamo v. Khan, 2010 BCSC 205 (Registrar)),
I award the plaintiff the costs of this MRI.

Dr. Parhar

[40]        
Dr. Parhar is the plaintiff’s family physician.  Dr. Parhar
provided an initial medical-legal report on May 5, 2011, and an updated
medical-legal report on March 5, 2013.  He charged $2,100 for each of those
medical-legal reports.  The defendants agree that obtaining the first medical-legal
report was necessary and proper; however, they argue that the amount charged by
Dr. Parhar for that report is unreasonable and suggest that a more reasonable
amount for that report would be the sum of $1,600, an amount which is close to
the amount recommended by the BC Medical Association in its Guidelines for
Physicians.

[41]        
I disagree with the defendants’ submissions on this item.  As I
noted in Dhillon v. Bowering, 2013 BCSC 1178, it is not a registrar’s
job on an assessment on costs such as this to subject the fees of each and
every expert to line by line scrutiny.  Nor is a doctor restricted to charging
(or a plaintiff being reimbursed for) the amounts recommended in the BCMA
Guidelines for Physicians which have been held to be guidelines only; not
determinative of the reasonable amount of an expert’s fees (see Hall v. Coad,
2002 BCSC 720 (Registrar), at para. 13).  On an assessment of costs, a
registrar ought to determine whether the amount charged, based on the work
product and her experience in dealing with matters of this nature, is
reasonable in all of the circumstances.

[42]        
Dr. Parhar is a very well-respected physician.  He is a general
practitioner but also the Medical Director of C.O.R.E. [Complete Occupational,
Rehabilitation, and Environmental Medicine] Occupational Healthcare Centre; the
Associate Dean – Equity and Professionalism for the Faculty of Medicine at the
University of British Columbia; and a Clinical Assistant Professor in the
Department of Family Practice, Faculty of Medicine at the University of British
Columbia.  I am satisfied that the $2,100 charged by Dr. Parhar was
reasonable in the circumstances.  In fact in Jalili v. Ma, supra,
Registrar Cameron allowed a plaintiff to be reimbursed that same sum ($2,100)
in respect of a medical-legal report authored by the same Dr. Parhar.

[43]        
Turning now to Dr. Parhar’s updated medical-legal report, I am also
satisfied that it was necessary and proper to obtain a second report.  That
report relates to the injuries the plaintiff suffered in Accident No. 3. 
The purpose of the report was to confirm that Accident No. 3 aggravated
the plaintiff’s injuries from Accidents No. 1 and 2 and confirmed his
continued problems with pain and tenderness.  It also provided an additional
diagnosis of myofascial pain syndrome which had not been included in Dr. Parhar’s
previous report.  An updated report would have been necessary had this matter
proceeded to trial, for no other reason than to provide the trier of fact with
evidence of the impact of Accident No. 3 on the plaintiff’s injuries and
prognosis for recovery.

[44]        
I find that it was necessary and proper to obtain a new or updated
report from Dr. Parhar.  For the reasoning already set out, I find that
the cost of that second report ($2,100) is reasonable, and I will allow the
plaintiff to claim the costs of Dr. Parhar’s second report at that amount.

[45]        
In addition to the two medical-legal reports, Dr. Parhar was asked
by plaintiff’s counsel to provide his comments on the reports of several of the
other experts: Dr. Cameron’s report dated September 3, 2010; Dr. Shuckett’s
report dated January 31, 2011; Mr. Cochran’s report dated April 11, 2011;
and Dr. Shuckett’s report on the MRI dated May 9, 2011.

[46]        
Dr. Parhar’s cost for providing these opinions was $300 each, plus
taxes.  I do not agree with Mr. Kancs’ submissions that these reports were
“necessary”.  They were ordered to substantiate the opinions of other experts
involved in this matter and to attempt to bolster the plaintiff’s claims.  In
my view, it was neither necessary nor proper to obtain Dr. Parhar’s
opinion on the reports of other experts.  While it may have been of some
assistance to counsel, each of the other expert’s reports stands on its own. 
Having Dr. Parhar opine on them was overzealous and extravagant.  Accordingly
I disallow the costs of these additional reports.

Dr. Cameron/Dr. Robinson/Dr. Heran

[47]        
The plaintiff retained two neurologists: Dr. Cameron and Dr. Robinson;
and a neurosurgeon: Dr. Heran.

[48]        
Mr. Kancs, in his affidavit of October 23, 2013, confirmed that he
retained Dr. Cameron (whose report is dated September 3, 2010) because:

4.         In the second accident of August 17, 2009, the
Plaintiff told me that as a result of the impact, he had hit the top of his
head on the garage remote control that was located on his sun visor, in his
vehicle. The Plaintiff also told me that he felt a “dent” in his head as a
result of his accident.

5.         In addition, the Plaintiff told me that he began
to experience headaches following the August 17, 2009 accident and related
these headaches to the August 17, 2009 accident.

6.         In addition, the Plaintiff advised me he suffered
from numbness in his left arm, left shoulder, left hand and fingers. Further,
the Plaintiff complained about problems with his memory which he says were
present after the first motor vehicle accident of November 9, 2008.

7.         On the basis of the
above complaints, and in particular, to assess whether the Plaintiff suffered a
significant head injury, I felt it was necessary to have the Plaintiff accessed
[sic] by Dr. Cameron (Neurologist), who saw the Plaintiff on July
26, 2010.

[49]        
In respect of Dr. Robinson, Mr. Kancs in his affidavit of
October 4, 2013 in support of the plaintiff’s bill of costs, says:

I referred the Plaintiff to Dr. Gordon
Robinson in view of his continuing complaints of headaches. I felt that an
opinion from a neurologist regarding the Plaintiff’s continuing headaches would
be an important opinion concerning his soft tissue injuries and chronic pain. Dr. Robinson
has a great deal of experience with the relationship between soft tissue
injuries and headaches.

[50]        
In support of his decision to retain Dr. Heran, Mr. Kancs deposes:

In view of the Plaintiff’s
continuing low back symptoms and his apparent disability as a result, I felt
that an independent medical examination with a neurosurgeon may offer some
recommendations, including whether surgery was indicated, or a risk of surgery
in the future may be an option for the Plaintiff. I felt that this medical
examination was also important in view of the fact that the defence have
elected Trial by Judge and Jury. In my view, chronic pain cases, such as this
one, are sometimes difficult cases to deal with in front of a Jury.

[51]        
The defendants agree that it was necessary and proper to retain Dr. Cameron. 
However, they argue that Dr. Cameron’s fees are simply too high,
particularly in light of the fact that, although Dr. Cameron defers to Dr. Riar
to further opine on these issues, at paragraph 22 of his report, Dr. Cameron
opines that, in his view, the plaintiff may be suffering from PTSD, an area
outside his expertise.

[52]        
No doubt it was necessary and proper for the plaintiff to retain a
neurologist to opine on the issue of possible injuries to his nervous system.  I
do, however, agree with counsel for the defendants that the amount charged by Dr. Cameron
for his opinion is high, given that Dr. Cameron’s report contained
excessive narrative and that in it he opined on areas outside his expertise
(PTSD) (see Wheeldon v. Magee, 2010 BCSC 491 (Registrar) at para. 26). 
Dr. Cameron billed $3,240 for his opinion.  Based on the fact that he
spent unnecessary time and effort opining on an area outside his expertise, I
would reduce that amount somewhat.  In my view, Dr. Cameron’s report ought
to be allowed at the sum of $2,800.

[53]        
The defendants argue that it was not necessary or proper to retain three
persons with expertise in the field of neurology and/or neurosurgery and that
one (Dr. Cameron) would have been sufficient.  They say that neither Dr. Robinson
nor Dr. Heran added to the findings in Dr. Cameron’s report,
especially given the fact that Dr. Cameron found the plaintiff to be
neurologically “normal”.

[54]        
In his report, Dr. Cameron states that, from a neurological
standpoint, the plaintiff could return to work.  Dr. Robinson’s report is
similar.  He notes that the plaintiff does not appear to be suffering from any apparent
neurological deficits and finds the plaintiff to essentially be “normal” from a
neurological standpoint.  He suggests that the plaintiff’s issues with neck and
back pain, coupled with his headaches, are consistent with chronic pain
disorder and not related to any underlying physiological or neurological injuries.

[55]        
Mr. Kancs’ evidence on why he retained Dr. Robinson is quite
sparse.  He simply states that it was necessary to have an opinion regarding the
plaintiff’s recurring headaches (one of the reasons he deposed he sent the
plaintiff to Dr. Cameron for an independent medical examination).  There
is no reason given as to why it was necessary to retain Dr. Robinson
rather than, for example, sending the plaintiff back to Dr. Cameron if it
was felt that the plaintiff required reassessment.  I am left to speculate as
to why Dr. Robinson was retained.

[56]        
I agree with the defendants’ submissions that it was not necessary or
proper to retain a second neurologist to opine on the plaintiff’s condition
given that Dr. Cameron had already found that the plaintiff had not
suffered any injuries to his central or peripheral nervous system in the first
or second motor vehicle accident.  Accordingly, I disallow the $3,000 claimed
by the plaintiff for Dr. Robinson’s report.

[57]        
As for Dr. Heran, there is no evidence that warrants a referral to
a neurosurgeon to determine whether or not the plaintiff might need surgery, especially
given the normal reports from two eminently qualified neurologists.  In my view,
retaining Dr. Heran was extravagant and I disallow the $4,800 claimed by
the plaintiff for the costs of retaining Dr. Heran and for his report.

Dr. Riar

[58]        
The plaintiff saw Dr. Riar on three separate occasions.

[59]        
In his affidavit of justification dated October 4, 2013, Mr. Kancs states:

46.       Given the Plaintiff’s continuing complaints
regarding anxiety, fear of driving, anger, stress, emotional problems including
depression and sleep problems, I felt that an independent medical examination
by a psychiatrist was warranted. I referred the Plaintiff to Dr. Riar and
had him provide a report to me dated July 26, 2009.

47.       Dr. Riar’s first
report was useful in terms of seeking Part 7 (Accident Benefits) along with
diagnosing his problems, from an emotional/psychological point of view. This
would be important for the tort claims as well.

[60]        
The defendants agree that it was necessary and proper to obtain the first
report from Dr. Riar.  However, they submit the amount Dr. Riar charged
for that report was unreasonable and argue that I allow it at the sum of $1,500,
not the $2,950 charged (although no specific reason, other than that charges
for the report were simply excessive, was given as to why I ought to reduce
this amount).

[61]        
I cannot agree with the defendants’ submissions.  The amount charged by Dr. Riar
is well within the range of what I might expect to see from a specialist like Dr. Riar
opining on matters such as those set out in his first report.  The work product
speaks for itself.  I do not intend to arbitrarily reduce the amount charged
simply on the basis that the defendants think it is excessive.  As noted
earlier, a registrar’s role on an assessment of costs is to allow, based on her
experience in like matters, a reasonable amount for those disbursements she has
found to be necessarily or properly incurred in the conduct of an action (Dhillon
v. Bowering, supra).  I will therefore allow the plaintiff the sum
of $2,950 in respect of Dr. Riar’s initial report.

[62]        
Turning to Dr. Riar’s second and third reports, in his affidavit, Mr. Kancs
says this about them:

51.       Subsequent to the second accident of August 17,
2009, I once again asked that Dr. Riar see the Plaintiff for an updated
assessment, given the effects of the second accident of August 17, 2009.

52.       Dr. Riar saw the Plaintiff on December 8, 2010
and forwarded his follow-up assessment report to me dated January 17, 2011. Dr. Riar’s
opinion in his report of January 17, 2011, was that the Plaintiff’s pains and
symptoms of anxiety and depression were aggravated by the second accident of
August 17, 2009. Again, Dr. Riar recommended that the plaintiff attend
with psychotherapy treatments.

53.       Following the third
accident of January 3, 2013, I asked Dr. Riar to see the Plaintiff once
again for a further updated medical/legal report. Dr. Riar provided me
with that report which was dated April 2, 2013. Dr. Riar’s opinion was
that the third accident again aggravated his pre-existing symptoms of chronic
pain disorder. Dr. Riar also felt that the Plaintiff’s was disabled from
performing any competitive employment or work. He felt that the help of an
occupational therapist be in order.

[63]        
The defence argues that neither the second nor the third assessment was
necessary or proper in that neither of these two latter reports adds anything
to Dr. Riar’s prior reports and/or diagnosis.

[64]        
I disagree with the defendants’ submissions on this point.  The fact
that Dr. Riar found nothing new is not to be looked at in hindsight.  A
registrar is to decide whether, at the time the report was ordered, it was
necessary and proper to order such report (Van Daele v. Van
Daele, supra).

[65]        
Mr. Kancs’ evidence is that Dr. Riar’s second and third reports
were ordered for two purposes: Part 7 issues and diagnosis.  Also, no doubt it
was imperative in establishing the plaintiff’s case to prove what psychological
impact the second and then the third accidents had on his recovery and
prognosis.  That information would have been invaluable to the trier of fact
had the matter proceeded to trial and, in addition, to establishing the
plaintiff’s non-pecuniary damages given that many of the plaintiff’s claims
rested upon aggravated symptoms and issues of anxiety and mild depression.

[66]        
Even though in his first report Dr. Riar notes that the plaintiff
experienced “some symptoms suggestive of PTSD” and gives a guarded prognosis
for the short term and a favourable prognosis for the long term, it is possible
that either of the subsequent two accidents may have changed that diagnosis and
it was necessary and/or proper for plaintiff’s counsel to seek those reports. 
I am also of the view that the amounts charged by Dr. Riar for each of his
subsequent reports ($3,250 each) were reasonable, and I will allow the
plaintiff to recover the costs of each of those reports.

Andrew Hosking, Ultima Health Assessments

[67]        
I was advised at the assessment of costs that, certainly following
Accident No. 2 (it may have been earlier but my notes are unclear), the
plaintiff was unemployed and on social assistance.  Because of his reliance on
social assistance, the plaintiff was referred to Triumph Vocational Services, a
program funded by the BC Government/Ministry of Housing and Social Assistance,
for a vocational assessment.  Triumph Vocational Services in turn referred the
plaintiff to Back in Motion Functional Assessments Inc.  Rob Corcoran, a
consultant occupational therapist, saw the plaintiff and prepared an
“evaluation to determine [the plaintiff’s] functional abilities and
limitations” and to provide an opinion regarding the plaintiff’s “suitability
to perform a driving occupation or print shop support services”.  Mr. Corcoran’s
report was in evidence before me.  It is dated January 20, 2011.

[68]        
After the plaintiff met with Mr. Corcoran and his report was
prepared, Mr. Kancs referred the plaintiff to Mr. Andrew Hosking of
Ultima Health Assessments for a functional capacity assessment for use in the
litigation.  In his affidavit in support of the plaintiff’s bill of costs, Mr. Kancs
stated:

Given the recommendations made
for a functional capacity evaluation and the fact that Rob Corcoran
(Occupational Therapist) had previously seen the Plaintiff, I felt it important
to have a functional capacity evaluation performed.

[69]        
In his report at page 22, Mr. Hosking notes:

Mr. Jaid demonstrates
marked pain behaviour. His subjective reports of pain and function only
intermittently correlate with observed behaviours and function. He demonstrated
a series of inconstancies between formal testing and testing under distraction.
He is therefore considered unreliable.

[70]        
Because he was concerned about this observation, Mr. Kancs asked Mr. Hosking
to prepare an addendum to address the issue of reliability of the assessment. 
The addendum was provided on November 28, 2012.  In that addendum, Mr. Hosking
deals with the issue of reliability and states:

The intention of the statements
regarding reliability was that Mr. Jaid demonstrated poor reliability in
the context of the match between his subjective reports of symptoms and
demonstrated objective findings. One component of Mr. Jaid’s diagnosis (in
the opinion of Dr. Shuckett) is chronic pain syndrome. I
acknowledge that the diagnosis of chronic pain implies elements of physical and
non-physical factors. The observed pattern of unreliability in testing may be
linked to non-physical factors. It is beyond my scope of professional expertise
to comment or interpret the findings in this functional capacity assessment
with regards to non-physical factors. I defer to Mr. Jaid’s physicians to
comment on non-physical elements of his condition and how it may impact on his
performance in testing such as this functional capacity evaluation.

[71]        
Mr. Fong for the defendants argues that I ought not to require the
defendants to pay for an evaluation during which it cannot be said that the
plaintiff tried his best.  He says it is incumbent on a plaintiff undergoing an
assessment to at least try to do his best.  This is of particular import in
this case say the defendants where the plaintiff’s credibility was clearly at
issue as, according to the defendants, the plaintiff had decided he no longer
wished to work and was hoping for a finding that the accidents had rendered him
permanently disabled thus entitling him to a substantial damages award.  Therefore,
it was not in the plaintiff’s best interests to put forth his best efforts
during his assessment by Mr. Hosking.

[72]        
I cannot find, on the evidence before me, whether the plaintiff was
simply “phoning it in” or if his lack of effort was instead related to
non-physical factors, as Mr. Hosking suggested might be the case in his
follow-up report.  I am not minded to disallow this report based on the
supposition that the plaintiff did not give sufficient effort as there are
other, plausible, reasons for Mr. Hosking’s findings.  Thus the
defendants’ submissions on this point must fail.

[73]        
Alternatively, the defendants argue that this report was neither
necessary nor proper as it had not been established by any of the experts that
the plaintiff had suffered a permanent or even a partial disability and that,
without such a finding, it was not necessary to commission a functional
capacity assessment.

[74]        
It is true that until Accident No. 3 none of the experts had found
that the plaintiff suffered any permanent (or partial) long-term disability.  Dr. Riar’s
reports in respect of Accidents Nos. 1 and 2 both note that the
plaintiff’s long-term prognosis is favourable. Dr. Cameron and Dr. Robinson
both found the plaintiff to be “normal” from a neurological standpoint.  Neither
of them suggested the plaintiff was incapable of working.  Dr. Shuckett
commented that the plaintiff appeared to be suffering from chronic pain
syndrome but she did not make a finding of permanent or partial disability.  In
fact, in her report, Dr. Shuckett says:

“I do not see him as being
totally disabled in the long term future”.

[75]        
It is true that, in general (McKenzie v. Darke, 2003 BCSC 138
(Registrar)):

21.       Taxing officers ought
not to second guess a competent counsel doing a competent job, solely on the
grounds that other counsel might have been more sanguine or less cautious in
determining how the job should be done.

[76]        
However, 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 (Registrar)) and to
provide evidence to the assessing officer as to why the expense was incurred: Guelke
v. Hallett, [1990] B.C.J. No. 1240 (S.C.).  Here, the evidence in
favour of a functional capacity assessment was lacking.  I reviewed all of the
reports and could not find any expert who recommended that the plaintiff
undergo a functional capacity evaluation.  Mr. Kancs, in his submissions,
said that Dr. Riar and Dr. Heran both recommended an occupational
therapist.  It is true that Dr. Riar made such a recommendation but that
recommendation is in Dr. Riar’s third report which was completed after the
functional capacity evaluation was commissioned.  Dr. Heran, in his report
dated July 16, 2012, noted that no formal functional capacity evaluation had
been performed.  He also suggests:

Any comment with respect to his
ability for obtaining gainful employment as well as managing his own domestic
and recreational affairs is out of the context of my expertise and better
ascertained by someone trained in these areas.  I will note, however, with his
degree of psychological impairment, a clear capacity evaluation will not be
possible. . .

[77]        
I can find no evidence on which to support the commissioning of a
functional capacity evaluation.  No doubt this report was ordered out of an
abundance of caution or zeal and, accordingly, the costs of it are disallowed.

Dr. Gouws

[78]        
Dr. Gouws is an occupational medicine doctor.  Because the
plaintiff was having difficulty obtaining employment, Mr. Kancs referred
the plaintiff to Dr. Gouws to assess the plaintiff’s ability to work and
what occupations might be available to the plaintiff given his injuries.

[79]        
In my view, it was excessive and overzealous (see Bell v. Fantini,
supra) and out of proportion to the expected damages that the plaintiff
might expect to be awarded (see Stapleton v. Charambidis, 2010 BCSC 1642
(Registrar), at para. 32) for the plaintiff to engage Dr. Gouws,
particularly in light of the fact that Mr. Hosking had already been
engaged to do a functional capacity evaluation.  In my view, Dr. Gouws
added little or nothing to the equation and his fee ought to be disallowed.

Derek Nordin

[80]        
Turning to the report by Derek Nordin of the Vocational Consulting
Group, Mr. Kancs advised that he ordered the vocational assessment on the
basis of recommendations by Dr. Robinson and Dr. Gouws, as well as
his own experience in like matters, that it would be useful to obtain an
assessment of the plaintiff’s loss of future earning capacity, including issues
of residual earning capacity.

[81]        
In his report Mr. Nordin found that:

In light of the medical and psychiatric
information reviewed, as well as Mr. Jaid’s self-report, it is my opinion
he is likely not competitively employable in his current physical and
psychological condition.

[82]        
Mr. Kancs said that the combined opinions of Dr. Robinson, Dr. Gouws
and Mr. Nordin would form the foundation of both a past income loss and a
loss of future earning capacity claim, should the matter proceed to trial,
especially in front of a jury.

[83]        
Mr. Nordin appears to pick up Dr. Cameron’s suggestion that
the plaintiff might benefit from some psychological counselling and notes that
the plaintiff appeared “depressed” at his interview.  He also notes, however,
that a finding of depression is outside his expertise.

[84]        
As noted earlier in these reasons, the defendants argue that the plaintiff’s
case was built on a faulty foundation – Dr. Cameron’s finding that the
plaintiff was suffering from PTSD.  They also submit that many of the experts
appeared to become advocates for the plaintiff and, not only Dr. Cameron,
but other of the experts, provided opinions outside their expertise.  Accordingly,
the defendants submit many of the costs for the experts, including those for Mr. Nordin,
ought not to be allowed.

[85]        
In Wheeldon v. Magee, supra, Master Bouck (as Registrar)
reviews the principles to be applied by a registrar on an assessment of costs. 
She notes that the assessment of disbursements is governed by the provisions of
Rule 57(4) (now 14‑1(5)) which provide:

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.

[86]        
Her Honour then notes (para 26):

Experts’ charges may be disallowed or reduced for a variety
of reasons, including when:

*  the cost is unreasonable,
compared to the evidence of other similar experts;

* the expert’s report includes,
improperly, extensive narrative; and

*  when the suggested damages
reported by the expert are "preposterous" in the view of the court.

Bell v.
Fantini (No. 2) (1981), 32 B.C.L.R. 322 (S.C.) (see also Leverman
v. Prince George (City), 2000 BCSC 697 for a synopsis of this decision).

[Emphasis
added.]

[87]        
It is clear from Master Bouck’s comments in Wheeldon v. Magee that
where an expert opines on matters outside his or her expertise that the charges
for that expert may be reduced.  It then also stands to reason that where the
opinions of other experts are built on the faulty opinion, the costs for such
opinions, too, then ought to be reduced or even disallowed in their entirety.

[88]        
I find that it was neither necessary nor proper to engage Mr. Nordin’s
services.  His opinion was built on Dr. Cameron’s “finding” of PTSD at
paragraph 22 of his report.  Here, in my view, the plaintiff ought to have
built his case on Dr. Shuckett’s findings as well as those of Dr. Riar
and one neurologist.  Any additional experts retained ought to have been
retained based on what those experts opined in their reports.  The plaintiff
did not follow that course.  Instead, he pursued his case aggressively and
overzealously.  It was not necessary to obtain a vocational assessment.  There
is no evidence (except the evidence built on Dr. Cameron’s “finding” of
PTSD) that the plaintiff needed vocational testing or training.  Accordingly I
disallow the claim for Mr. Nordin.

Rob Carson

[89]        
As for Mr. Carson’s reports on cost of future care and future
income loss, Mr. Kancs submitted that, when he sent the plaintiff to see Mr. Carson,
the plaintiff was not working.  Mr. Kancs believed that it would be
important for the purposes of the mediation and to assist the jury in “doing
the math” in respect of these costs.  Mr. Kancs submits that, as in Jalili
v. Ma, supra where the registrar allowed the plaintiff to claim the
costs of a report by Mr. Carson, the “value-added” by Mr. Carson in
this instance would be, as noted, to assist the trier of fact in calculating
the costs of the plaintiff’s claims.  I agree with Mr. Kancs submissions
on this point.  Where a jury is the trier of fact, it is useful to provide to
them some evidence as to how the plaintiff’s costs of future care and his
future income loss ought to be calculated.  It was therefore necessary and
proper to obtain this opinion.  Further, the costs for it ($1,250) are
reasonable and will be allowed.

Mr. Shirazi

[90]        
The plaintiff hired an interpreter to assist him at the mediation.  He
was born in Kurdistan (Iran) in 1963 and came to Canada in 1992 at the age of
29.  He completed the equivalents of Grades 1 to 8 in Kurdistan.  He then left
school and worked in automotive repair in Kurdistan for some time before
working with his father in a store owned by his family.

[91]        
Since arriving in Canada, the plaintiff has worked in a variety of capacities
including as a taxi driver, some work in window and door manufacturing, and as
the owner/operator of a cleaning business and of a print shop.  At some point in
his life, he provided services as a translator to new immigrants and for an
insurance company in Quebec.

[92]        
Mr. Kancs said that he hired an interpreter to assist the plaintiff
at mediation because he felt it was incumbent upon him, as counsel, to ensure
that the plaintiff understood the legal issues at stake and the options
available in order to provide him with proper instructions.

[93]        
The defendants argue that I ought not to allow the cost for the
interpreter.  Given the fact that the plaintiff himself worked on occasion as
an interpreter, it must be said that it was neither necessary nor proper for
the plaintiff to engage the services of an interpreter to assist him at the
mediation.

[94]        
I recently had occasion (Park v. Koepke, 2013 BCSC 1806) to
consider the necessity and propriety of a claim by a plaintiff for the costs of
an interpreter.  In that decision I noted:

68        It is settled law in this Province that the
questions to be answered by a registrar on every assessment of costs in
relation to disbursements are first: Was the disbursement necessarily or
properly incurred in the conduct of the proceedings? And second, if it was:
What is a reasonable amount to allow for such disbursement?

69        I will start by considering whether it was either
necessary or proper for Ms. Park (through her counsel) to have employed
the services of a court-certified interpreter for each and every interaction
with counsel.

70        As I noted earlier in these reasons,
"necessary" disbursements are essential disbursements: disbursements
that could not have been avoided in the conduct of the proceeding.
"Proper" disbursements are those reasonably incurred in the conduct
of the proceeding but which are, strictly speaking, avoidable: McKenzie v.
Darke (supra) [2003 BCSC 138 (Registrar)]; and Zaenker v. Kirk,
2008 BCSC 916.

71        In Paul’s
Restaurant [Paul’s Restaurant Ltd. (c.o.b. Laurel Point Inn) v. Dunn,
[1996] B.C.J. No. 114 (S.C.) (Registrar)], Registrar Joyce confirmed that
the right to have the assistance of an interpreter is not restricted to
testifying at trial. The right is to "have the ability to understand the
proceedings". In William v. HMTQ [2007 BCSC 853], as noted
Registrar Blok refused to accede to the defendant’s argument that the costs of
out-of-court interpreters generally ought to be rejected.

[95]        
I note that in his report, Mr. Nordin found that the plaintiff demonstrated
weak academic skills; scoring at a less than Grade 7 level for all areas,
including word reading, sentence comprehension, spelling and reading
composition.  In my view, that is indicative of the fact that the plaintiff was
not capable of understanding all of the intricacies of the mediation, and
therefore it was important (necessary and proper) that the plaintiff have the
assistance of an interpreter at the mediation.  I agree with Mr. Kancs’
submission that it was essential for the plaintiff to understand the happenings
at the mediation; particularly all of the legal issues, and that he be able to
provide appropriate instructions to his counsel.  That would be difficult for
him given his level of education and understanding of English.  It is one thing
to assist new immigrants to this country as a volunteer and quite another to be
able to understand legal concepts and make crucial financial decisions under
the pressure of mediation.  I am also satisfied that the amount charged by the
interpreter ($265) is reasonable and I will allow the cost as claimed.

CONCLUSION

[96]        
Of those disbursements that were disputed, I have allowed the plaintiff
the following:

[97]        
I leave it to the parties to work out the mathematical results of these
reasons.  If the parties are unable to work out the mathematical results or
need additional input from me, they are welcome to set this matter before me
for finalization and for the signing of a certificate if so required.

“K.S. Sainty”

Registrar
Sainty