IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140331

Docket:
48369

Registry: Vernon

Between:

Christine
Annmarie Martin

Plaintiff

And

Devin
T. Chamberlain and Aldon Equipment Ltd.

Defendants

Before: The Honourable Justice Barrow

Oral Reasons for Judgment

In Chambers

[1]            
THE COURT: The
plaintiff has applied for a review of the determination by the master, sitting
as registrar, in which she disallowed disbursements relating to several MRIs.

[2]            
The plaintiff was injured in a motor vehicle
accident in March 2011. Her injuries were primarily to her neck, shoulders,
back, hips and abdomen.

[3]            
This action was commenced in July 2011. In
February 2012 a trial date of September 30, 2013, was set. Three MRIs were
taken of various parts of the plaintiff’s body. On June 29, 2012, an MRI of her
thoracic spine was performed, on July 12th an MRI of her abdomen and pelvis was
taken, and finally on July 19, 2012, she had an MRI of her sternum.

[4]            
In November 2012 the parties learned that the
trial then scheduled for September 2013 could not be accommodated because of a
number of other cases had priority. As a result, the trial was re-set for
December 2013. Although the action was settled before trial, the parties were
unable to agree on the number of the disbursements claimed by the plaintiff.

[5]            
An assessment of the plaintiff’s bill of costs
was held on January 7 and February 4, 2014, before Master Young. She disallowed
the disbursements relating to the three MRIs noted above. There is no
transcript of her decision but counsel agree that she disallowed the claimed
disbursements because she was not satisfied on the evidence before her that the
MRIs could not have been performed at minimal or no cost through the public
health care system. She concluded that to commission private imaging was
extravagant and therefore the disbursement was not proper. The only evidence on
the need for obtaining MRIs privately was in the plaintiff’s counsel’s
affidavit. Mr. Cotter deposed that, "In the Okanagan, publicly funded
MRI scans are not reasonably available, at least not on a timely basis."

Analysis

[6]            
The test to be applied in determining whether a
particular disbursement is or is not recoverable was set out by McFarlane J.A.
in Van Daele v. Van Daele, [1983] 56 B.C.L.R. 178 (C.A.). At
paragraph 11 he said:

…The proper
test, it seems to me, from a number of authorities referred to us this morning
is whether at the time the disbursement or expense was incurred it was a proper
disbursement in the sense of not being extravagant, negligent, mistaken or the
result of excessive caution or excessive zeal, judged by the situation at the
time when the disbursement or expense was incurred.

[7]            
As was pointed out by Legg J. in Bell v.
Fantini, [1981] 32 B.C.L.R. 322, a registrar has a wide discretion to allow
or disallow disbursements. The discretion is to be exercised on the basis of
whether the disbursements were properly incurred. At paragraph 23 he noted:

…The Registrar
must consider all the circumstances of each case and determine whether the
disbursements were reasonably incurred and were justified.

[8]            
The standard of review to be applied on
applications to review a determination by a registrar in these circumstances
was summarized by Gropper J. in Colasimone v. Ng and Mo, 2007 BCSC
1179. The standard is deferential reflecting the discretionary nature of the
assessment under review. A reviewing court is not to interfere with a
registrar’s determination unless satisfied the registrar was "clearly
wrong" (Stoneman v. Desjardins, 2004 BCSC 57 and Colasimone v.
Ng at paragraph 3). Put another way, the court should not interfere
"except where the taxing master had gone wrong on a matter of
principle" (Frost v. Frost (1940), 56 B.C.R. 30 (C.A.)).

[9]            
The issue posed by the circumstances of this
case is not whether the MRIs were necessary or proper for purposes of the
litigation, but rather whether commissioning the MRIs privately was an
unreasonable extravagance. In June 2012, when the first of the three MRIs was
commissioned, the trial was scheduled for September 2013, some 15 months hence.
In order to be admissible, any expert reports would have had to have been
served on the defendant by July 8, 2013. The MRIs were commissioned with a view
to providing them to an expert for consideration by that expert in reaching his
conclusions. The expert from whom the plaintiff was contemplating obtaining
that report was a general practitioner with an expertise in pain management who
practices in Salmon Arm. There is no suggestion that the master ignored the
evidence of Mr. Cotter as it relates to the availability of publicly
funded MRI imaging scans. Further, there is no suggestion that the master did
not understand the chronology of the case and the time constraints within which
the MRIs would be required. Rather, as I understand counsel’s summary of the
master’s decision, she concluded that the evidence simply was not sufficient to
permit her to conclude that the MRIs could not be obtained through the public
health care system in sufficient time to permit them to be used in the
litigation.

[10]        
If the master erred in her conclusion, her error
does not amount to an error in principle as might be the case if, for example,
she had ignored relevant evidence. Nor can it be said that she was clearly
wrong in her assessment of the probative force of the evidence. Rather, she
simply concluded, based on the evidence that was before her, that she was not
satisfied that the MRIs could not have been obtained within the public health
care system at a much reduced cost. In effect, she concluded that the
commissioning of the private MRIs was not reasonably necessary and thus was not
a disbursement that was reasonably incurred. In so concluding, I am not
satisfied the master erred in principle or was clearly wrong.

[11]        
It follows that the application to review the
decision of the registrar is dismissed with costs to the defendant.

“G.M. Barrow J.”