IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20141002

Docket: M113758

Registry:
Vancouver

Between:

Sharyn Collis and
Joanne Nelsen

Plaintiffs

And

Onelda Passero

Defendant

Before:
District Registrar Nielsen

Reasons for Decision

introduction

[1]            
This is an assessment of a bill of costs arising from a motor vehicle
accident which occurred on May 12, 2011. This case falls within the provisions
of Supreme Court Civil Rule 15-1(15). The parties are in agreement that the
plaintiffs are entitled to the full $6,500 cap plus applicable taxes, for a
total of $7,280.

[2]            
The matters in issue concern various disbursements, including the report
of Dr. Paramonoff; the report of Dr. Taraz; the report of Dr. Schmidt;
the report of Dr. Koch; the report of Mr. Min Kyi; photocopies; an
invoice from DL Adjusters Ltd. to interview witnesses; the cost for Dr. Goetz
to fill out an Alberta claim for disabilities benefits form; an invoice from JR
Rehab Services Inc. for a kinesiology report of March 2013; and an invoice from
JR Rehab Services Inc. regarding occupational therapy services provided in April
2013.

background

[3]            
On May 12, 2011, the plaintiff, Ms. Collis, was a front seat
passenger in a Toyota Matrix which was being driven by the co-plaintiff Ms. Nelsen.
The defendant was operating a 1996 Ford A350 van with a U-Haul trailer. The
U-Haul trailer jackknifed and swerved into the plaintiffs’ lane of traffic,
sideswiping the plaintiffs’ vehicle. On impact, both vehicles lost control and
rolled. The plaintiffs’ vehicle slid upside down for a distance before coming
to a complete stop.

[4]            
A notice of civil claim was filed on June 20, 2011. Liability for the
accident was initially denied by the defendant, however, on October 1, 2013,
the defendant admitted liability.

[5]            
The notice of trial was filed on September 10, 2012 and was set to
commence on March 17, 2014, for 10 days. The length of trial was subsequently
increased to 13 days in a trial management conference. However, counsel for the
defendant was only available for 10 days due to his trial schedule, and
therefore it became necessary to complete the trial within the 10 days
originally scheduled. Decisions regarding witnesses and experts were made by
plaintiff’s counsel, with a view to completing the trial within the 10-day time
frame.

[6]            
On February 28, 2014 (17 days prior to the start of trial), the
plaintiffs accepted the defendant’s settlement offer of $85,000 with costs to
be assessed. Although plaintiffs’ counsel believed the case was worth more than
$100,000, she was instructed to accept the defendant’s formal offer of $85,000.

[7]            
As a result of the motor vehicle accident, the plaintiff, Ms. Collis,
suffered fractures to her left hand. She has a permanent decreased range of
motion and is unable to make a full grip. She also suffered injuries to her
neck, right shoulder, right chest wall and low back. In addition, the plaintiff
suffered post-traumatic stress disorder, adjustment disorder with a mixed anxiety
and depressed mood. The plaintiff still suffers from residual PTSD symptoms. An
issue was raised whether the plaintiff may have suffered a mild traumatic brain
injury.

[8]            
Counsel for the plaintiffs retained five expert witnesses: Dr. Kathryn
Paramonoff, physical medicine and rehabilitation specialist; Dr. William J.
Koch, registered psychologist; Dr. James P. Schmidt,
neuropsychologist; Dr. Fadi Tarazi, orthopedic surgeon; and Mr. Trevor
Min Kyi, occupational therapist. The reports of each of the experts are
contested by the defendant.

[9]            
At the time of the accident, the plaintiff was employed as a tennis
official. She was also a self-employed retail loss prevention officer/retail
store evaluator, which involved long hours of driving to and from Alberta. The
combined jobs were essentially part-time. In 2010, the plaintiff had a gross
business income of $22,460 which included her tennis income of $3,497. In 2011,
the plaintiff had a gross business income of $22,640, which included her tennis
income of $2,699. In 2012, the plaintiff had a gross business income of
$36,240, which included her tennis income of $1,401.25.

[10]        
The plaintiff performed retail store evaluations twice annually, in the
months of May and September. The plaintiff did not do this work in the other 10
months of the calendar year. Her pre-accident plans were to continue with the
same arrangements regarding employment, which was confirmed in her examination
for discovery evidence.

disbursements

[11]        
The applicable legal principles that must be applied with respect to
disbursements are summarized in Turner v. Whittaker, 2013 BCSC 712 at para. 5,
wherein Master MacNaughton stated:

[5]        Counsel were also able to agree on the following
legal principles which are applicable on an assessment of disbursements:

1.  Rule
14-1(5) requires an assessing officer to determine which disbursements were
necessarily or properly incurred in the conduct of a proceeding and to allow a
reasonable amount for those disbursements.

2.  The
consideration of whether a disbursement was necessarily or properly incurred is
case-and circumstance-specific and must take into account proportionality under
Rule 1-3. (Fairchild v. British Columbia (Vancouver Coastal Health
Authority), 2012 BCSC 1207).

3.  The time
for assessing whether a disbursement was necessarily or properly incurred is
when the disbursement was incurred not with the benefit of hindsight. (Van
Daele v. Van Daele, 56 B.C.L.R. 176 (SC) rev’d 56 B.C.L.R. 178 at para. 4
(CA))

4.  A
necessary disbursement is one which is essential to conduct litigation; a
proper one is one which is not necessary but is reasonably incurred for the
purposes of the proceeding. (McKenzie v. Darke, 2003 BCSC 138, para.
17-18)

5.  The role of an assessing officer is
not to second guess a competent counsel doing a competent job solely because
other counsel might have handled the matter differently. (McKenzie v. Darke,
2003 BCSC 138, para. 21).

[12]        
Both plaintiffs’ counsel and defence counsel have cited the Turner v.
Whittaker case in support of their respective positions.

The Medical-Legal Report of Dr. Paramonoff

[13]        
 The plaintiff was assessed by a physiatrist, Dr. Winston, at the
request of an Alberta-based, no-fault benefits insurer. Dr. Winston produced
two reports dated September 27, 2012 and June 24, 2013. Both these reports were
served on the defendant and plaintiff’s counsel advised that they would rely on
Dr. Winston’s reports and would call him as an expert witness at trial.

[14]        
Plaintiff’s counsel retained Dr. Paramonoff, also a physiatrist, to
provide a medical-legal report with respect to the condition of the plaintiff. Dr. Paramonoff
conducted an examination of the plaintiff on October 25, 2012, and produced a
medical-legal report dated November 9, 2012, for which $3,000 was billed. Plaintiff’s
counsel did not request a medical-legal report from the plaintiff’s family
doctor. Instead, Dr. Paramonoff was retained to review the documents and
provide a report with a diagnosis, prognosis, and recommendations for
investigation and/or treatment.

[15]        
Plaintiff’s counsel makes the point that she did not commission the
report of Dr. Winston. Rather, the disability insurance company (taking
the place of ICBC in Part 7 benefits as the plaintiffs was in an Alberta
insured, Hertz rental car) asked for the independent medical examination of the
plaintiff. It was the disability insurance company that sent the plaintiff to Dr. Winston.

[16]        
The defendant argues that because the plaintiff had Dr. Winston’s
report which she intended to use at trial, it was improper/unnecessary for the
plaintiff to obtain a report from her own physiatrist. The plaintiff submits
there is no requirement in law for a plaintiff to forego having their own
expert simply because a medical rehabilitation insurer has obtained a report.

[17]        
In the present case, Dr. Paramonoff essentially stood in the shoes
of the plaintiff’s general practitioner, as well as independent expert, fulfilling
the role of providing diagnosis, prognosis, and recommendations for
investigation and further treatment. In this respect, the report was not
duplicative. Further, the plaintiff is entitled to their own choice of expert
in this regard. There was no obligation to rely on Dr. Winston, the expert
retained by the disability insurer.

[18]        
The disbursement in the amount of $3,000 for the independent medical
examination of October 25, 2012 is allowed. The cost of her affidavit in the
amount of $210.00 is also allowed.

Dr. Fadi Tarazi

[19]        
The defendant further submits there was no need for the plaintiff to
retain Dr. Tarazi, an orthopedic surgeon, given that the reports of Dr. Paramonoff
and Dr. Winston had already been obtained. The defendant submits there
were “simply too many experts retained to assess the plaintiff and get largely
similar opinions about the plaintiff’s physical injuries (the chief injury
being to her left hand)”.

[20]        
The plaintiff had requested Dr. Tarazi to conduct an examination on
the plaintiff, provide a report on the status and future prognosis of the
plaintiff, opine on whether she would need surgery in the future with respect
to her left hand, right shoulder, right chest wall, neck, and back, and whether
she would develop other symptoms in the future.

[21]        
The defendant alleges that the report of Dr. Tarazi was unnecessary
and duplicative, in the sense that the two physiatrists, Dr. Paramonoff
and Dr. Winston had already provided opinions sufficient to dispose of the
issue.

[22]        
Plaintiff’s counsel submits she was informed by Dr. Paramonoff that
physical medicine and rehabilitation is a non-surgical specialty, and as such,
the plaintiff would not be able to rely upon the opinion of Dr. Paramonoff
with respect to specifics involving surgical treatment, risks, success rate and
post-surgical recovery.

[23]        
Dr. Tarazi is an orthopedic surgeon who specializes in surgery of
the arms, hands, and shoulders. Dr. Tarazi’s report dated August 12, 2013,
was that surgical intervention with respect to the plaintiff’s neck and back
was not warranted, as he did not identify any symptoms or physical signs of
nerve root impingement.

[24]        
Dr. Tarazi opined that the plaintiff may well require surgery in
the future on her left hand, right shoulder, tendonitis, and acromioclavical
joint, if she engages in activities that include overhead work, repetitive
movements, reaching and lifting, as well as playing tennis. His report also
identified a significant aggravation of the plaintiff’s rotator cuff tendonitis
and subacrimonial bursitis, as well as an aggravation of a pre-existing,
relatively asymptomatic arthritis of the right acromial clavicular joint,
resulting in ongoing pain of the plaintiff’s right shoulder.

[25]        
Dr. Tarazi also commented on the injuries to the plaintiff’s left
hand, including fractures of the second, third and fourth fingers, significant
myofascial soft tissue injuries around those fractures, scarring, stiffness and
osteoarthritis. He opined that the plaintiff will “more likely than not require
surgical intervention, such as fusion of the painful finger joints”. Dr. Tarazi
further stated “in my opinion, in the absence of the motor vehicle accident of
May 12, 2011, Ms. Collis would likely have never required any such surgery
through the natural aging process”.

[26]        
Dr. Tarazi’s report was authored almost two years after Dr. Paramonoff’s
report and was written from the point of view of an orthopedic surgeon,
providing opinions in regard to surgical prognosis. It is not duplicative with
the reports of the physiatrists.

[27]        
Given the nature of the plaintiff’s injuries, an opinion from an
orthopedic surgeon was necessarily and properly incurred. Accordingly, the
disbursement in the amount of $2,500 is allowed.

Dr. Schmidt

[28]        
The defendant takes issue with the report of Dr. Schmidt,
neuropsychologist, in the amount of $5,850 and the second report of Dr. Koch
in the amount of $2,943. Dr. Koch had prepared a report dated May 23,
2012, for which the defendant takes no issue. In the first report, Dr. Koch
concluded that the plaintiff suffers from major depressive disorder and PTSD in
partial remission, along with a chronic pain disorder of mild to moderate
severity.

[29]        
When the plaintiff was seen by Dr. Winston, concerns were expressed
regarding cognitive issues that the plaintiff was having since the time of the
accident. Dr. Winston recommended that the plaintiff be evaluated by a
neuropsychologist to determine if she had suffered a mild traumatic brain
injury as a result of the accident.

[30]        
Plaintiff’s counsel advised that she inquired with the insurance adjuster
who had retained Dr. Winston as to whether they would be sending the
plaintiff to a neuropsychologist but was told they would not be doing so.
Plaintiff’s counsel submits that as a medical expert had raised an issue concerning
a possible head injury it was necessary and proper for her to investigate. Accordingly,
an appointment was made with Dr. James Schmidt.

[31]        
Dr. Schmidt saw the plaintiff over the course of two days in
November 2012. He determined that it was possible, but not certain, that the
plaintiff had suffered a mild traumatic brain injury, and if so, he did not
think that the plaintiff was currently suffering as a result of such injury,
but rather that her anxiety and PTSD were causing the cognitive problems she
was experiencing.

[32]        
Ultimately, Dr. Schmidt did not diagnose a mild traumatic brain
injury. However, whether the disbursement was necessarily or properly incurred
is to be assessed when the disbursement was incurred, not with the benefit of
hindsight (Van Daele v. Van Daele, 56 B.C.L.R. 176 (S.C.), rev’d 56
B.C.L.R. 178, at para. 4 (C.A.).

[33]        
The car accident leading to the plaintiff’s injuries was serious and involved
a rollover of the vehicle. The plaintiff went on to suffer from serious PTSD
symptoms and a medical expert identified the possibility of a mild traumatic
brain injury. In these circumstances, investigations in this regard were
necessary and properly incurred. The disbursement in the amount of $5,850 is
allowed as is the travel cost to Dr. Schmidt’s office in the amount of
$344.33.

Dr. Koch

[34]        
Defence counsel submits that if Dr. Schmidt’s report is found to be
necessary or proper, Dr. Koch’s second report should be found to be
unnecessary and improper. The defendant submits that the plaintiff did not need
a further “update” report from Dr. Koch given that Dr. Schmidt’s
report would have been “stale-dated” at the time of trial. In the alternative,
the defendant submits that the amount of Dr. Koch’s invoice for the second
report ($2,943.33) should be reduced because Dr. Koch unnecessarily prepared
a “meticulous summary of the medical information and opinions contained in
other medical records and reports”.

[35]        
The defendant submits that as per Hamo v. Khan, 2010 BCSC 205,
the costs of preparing such meticulous summaries cannot be passed on to the
defendants. The defendant points to the summary of the records resulting in a
charge of $800. Finally, the defendant submits that at the very least, the sum
of $800 should be reduced from Dr. Koch’s second invoice.

[36]        
Defence counsel submits it is hard to imagine that the plaintiff would
have consented to two such assessments by the same defence expert or that the
court would have granted such an order for a second assessment by a
defence-retained psychologist in 2013 if the first assessment had been conducted
in 2012.

[37]        
Defence counsel submits that the concept of proportionality requires
parties to judicially select assessment dates by their experts so as to avoid
multiple assessments. Defence counsel submits that the plaintiff, on her own
accord, chose to be assessed by Dr. Koch twice. Defence counsel submits
that choice amounts to a “luxury and that luxury must be paid for from the
pocket of the indulgent party” and relies upon Noon-Ward v. Carlson et al,
2006 BCSC 922, at para. 13.

[38]        
The defendant states that having multiple assessments conducted by Dr. Koch,
resulting in multiple invoices, is extravagant and the cost of that
extravagance should not be laid at the defendant’s feet.

[39]        
The plaintiff emphasizes that PTSD-like symptoms were forefront to the
injuries suffered by the plaintiff and that Dr. Koch’s assessments were
necessary and appropriate. Plaintiff’s counsel states that because the
plaintiff was working in September and then leaving in October to visit her parents
who live in Australia and would not return until two weeks prior to trial, she
had Dr. Koch see the plaintiff again in August 2013 to re-test the
plaintiff and provide an updated assessment after therapy she had received.

[40]        
The plaintiff was seeking an updated diagnosis and prognosis and an opinion
concerning whether further treatments would be required.

[41]        
I agree with plaintiff’s counsel that a follow-up report from Dr. Koch
was necessary and proper. However, I also agree with defence counsel that in
the circumstances, a “meticulous summary of the medical information and
opinions contained in other medical records and reports” at that point in time
ought not to be passed on to the defendant.

[42]        
In addition, there is an element of convenience to the plaintiff in
terms of the timing of the follow-up report of Dr. Koch which ought not to
be passed on to the defendant. In the circumstances, I award $2,000 towards the
second IME of Dr. Koch dated October 30, 2013.

Mr. Min Kyi

[43]        
Defence counsel objects to the cost of the report of Mr. Kyi in the
amount of $4,352.50. Defence counsel submits there was no need for a functional
capacity evaluation to establish possible impairments at work, as the plaintiff
was essentially only working two months a year before the accident, by choice,
with some added sporadic tennis officiating. Defence counsel submits that Mr. Kyi’s
conclusion was that the work of a retail store evaluator and tennis official is
limited/light strength work, the plaintiff can work 20 to 40 hours per week as
a retail store evaluator, and she would be better suited to part-time as a
tennis official. Defence counsel submits that the plaintiff had not worked that
level of hours in the five or six years leading up to the accident and had no
intention of doing so, given her evidence at her examination for discovery.

[44]        
Defence counsel submits that given the plaintiff’s work history and
discovery evidence, it was neither necessary nor proper to obtain a functional
capacity report. He further submits it cannot be asserted that Mr. Kyi’s
report adds to the understanding of the plaintiff’s condition or what should be
done to ameliorate it following the motor vehicle accident.

[45]        
Defence counsel further submits that Mr. Kyi’s report was neither
necessary nor proper and was obtained out of a sense of excessive caution and
zeal and was not reasonably incurred. Defence counsel relies on Hayhurst v.
Rees, 2014 BCSC 1714, wherein Master McDiarmid concluded that a functional
capacity evaluation was not justified in that case. Master McDiarmid stated:

[26]      By early 2013, over four years after the July 28,
2008 accident and over one and one-half years after the June 2, 2011 accident,
the plaintiff had returned to work. Discovery evidence questions and answers
50-52 are as follows:

Q         All right. Now, did
you miss any time from work as a direct result of either the 2008 or 2011 motor
vehicle accident?

A          Yes. Only a couple
days.

Q         And can you tell me
what month that was?

A          Not sure of the
month. It was around summertime.

Q         Of which year?

A          It would have been
2009.

[28]      I appreciate the difficulties competent counsel
have in endeavouring to do the best job for their client. However, there was
little possibility that this plaintiff could have made a successful claim for
loss of earning capacity resulting from the motor vehicle accidents. Put
another way, there was no evidence that there would be a real and substantial
possibility of a future event leading to an income loss related to the injuries
sustained in the motor vehicle accidents.

[29]      Engaging an occupational therapist to conduct a
Functional Capacity Evaluation and Cost of Future Care report must, as Master
Bouck has written, be premised on a thorough and reasonable attempt to
ascertain the assumed facts in order to give authenticity to that report,
particularly “if it is sought to charge [the] costs against the other party…”: Cooknell
at para. 33.

[32]      With respect to this
particular case and this particular Functional Capacity Evaluation and Cost of
Future Care report, I can only echo what Master Bouck concluded at para. 37 in Cooknell,
where, upon consideration of the evidence and “with an attempt to sit in that
sensible solicitor’s chair”, I find that it was neither proper nor necessary in
the circumstances of this case to retain an occupational therapist to prepare a
Functional Capacity Evaluation and Cost of Future Care report. There was no
evidence that there would be a real and substantial possibility of a future
event leading to an income loss resulting from the injuries this plaintiff
sustained in the two motor vehicle accidents. Accordingly, the disbursements
for the Meridian Rehabilitation reports are disallowed.

[46]        
Defence counsel submits that the circumstances in the present case are
similar, and that the report of Mr. Kyi ought to be excluded in its
entirety.

[47]        
In the alternative, defence counsel submits that the amount of Mr. Kyi’s
bill should be reduced because, like Dr. Koch, Mr. Kyi unnecessarily
prepared a “meticulous summary of the medical information and opinions
contained in other medical records and reports”.

[48]        
Defence counsel submits that the cost of preparing such meticulous
summaries cannot be passed on to the defendant. At the very least, the amount
ought to be reduced.

[49]        
Plaintiff’s counsel submits that Mr. Kyi’s report is 47 pages in
length, and there are only four pages where he sets out medical information.
Although Mr. Kyi is an associate professor in the UBC Faculty of Medicine,
he is not a physician and needs to set out what the various medical experts
have to say, as part of his set of assumptions.

[50]        
Plaintiff’s counsel further submits that Mr. Kyi was retained to
opine on the plaintiff’s ability to perform her current work, to determine
whether the plaintiff had a diminished earning capacity, and if so, what type
of work she was physically capable of doing, and for how long.

[51]        
The plaintiff emphasizes that the onus of proof rests upon the
plaintiff’s shoulders and that a functional capacity evaluation is therefore
reasonable and necessary in the litigation. Plaintiff’s counsel relies on Varga
v. Shin, 2012 BCSC 1643, at paras. 40-44.

[52]        
In addition, plaintiff’s counsel cites Arnason v. Nerio, 2014
BCSC 185, where Master Young stated at para. 38:

[38]      Was it worth the cost
of a report to determine what a 63-year-old’s functional capacity is when he
had marginal employment prior to the accident and was so close to standard
retirement age? The evidence was that the plaintiff was looking forward to
re-entering the workplace prior to the accident. Had he not been injured he
might have continued some level of employment well past the age of 65,
especially since his marriage ended and he was in financial need and in need of
social interaction and support.

[53]        
The difficulty the plaintiff faces in this regard is the fact that prior
to the motor vehicle accident her evidence was that she was working part time by
choice, had no intention of working more than part time, and subsequent to the
motor vehicle accident she continued to work part-time, and in fact increased
her yearly business earnings. There was no need for a functional capacity
evaluation report to establish possible impairments at work. I am in agreement
with defence counsel that Mr. Kyi’s report was neither necessary nor
proper in the specific circumstances of the case. It was obtained out of a
sense of excessive caution or zeal and was not reasonably incurred.

[54]        
Given the discovery evidence of the plaintiff and the evidence of
earnings both before and after the motor vehicle accident, there was no
evidence that there would be a real or substantial possibility of a future
event leading to an income loss resulting from the injuries that the plaintiff
sustained in the motor vehicle accident. Accordingly, the disbursement for Mr. Kyi’s
August 6, 2013 report in the amount of $4,352.50 is disallowed.

[55]        
However, the amount of $119.60 for the records of Mr. Kyi requested by
defence counsel is allowed.

Photocopies

[56]        
The plaintiff claims $1,943.25 for photocopies for 7,773 pages at 25
cents per copy. As explained in Sovani v. Jin, 2006 BCSC 855, and Gill
v. Widjadja, 2011 BCSC 1822, the assessment of the reasonableness of
photocopying charges is not an arithmetical exercise but rather requires
consideration of what is reasonable in the circumstances of the action. It is a
calculation that has been described as “rough and ready”. These cases also make
clear that not all photocopies made on a file are for the purpose of the
litigation and necessary. It is inevitable that irrelevant materials will be
copied or unnecessary duplicates made.

[57]        
In the present case, the report of Mr. Kyi has been disallowed, as
has a portion of the second report of Dr. Koch. Using a “rough and ready”
calculation, the sum of $1,500 is allowed for photocopying expenses.

DL Adjusters Ltd.

[58]        
Counsel for the plaintiff retained DL Adjusters to conduct interviews of
two occurrence witnesses. As liability had been initially denied, interviewing the
occurrence witnesses was required. Counsel for the plaintiff retained an
independent adjuster to do the interviewing. The witnesses were located in
Alberta, so subpoenaing them would not have been a simple matter in the event that
the case proceeded to trial.

[59]        
Plaintiff’s counsel believes that she would have needed an independent
adjuster’s statement and an affidavit in the event the witnesses did not appear
at trial. Further, both occupants of the plaintiff’s vehicle wished to retain
counsel for the plaintiff. There was the potential of a conflict of interest.
Therefore, plaintiff’s counsel felt it prudent that the witnesses be
immediately and thoroughly investigated with respect to liability. In all the
circumstances, counsel for the plaintiff believed that it was not appropriate
for her to conduct the interviews of these two occurrence witnesses.

[60]        
In Turner v. Whittaker, supra, at paras. 42-48,
Master MacNaughton allowed a disbursement of $1,848.15 for the investigation of
liability, and acknowledged that it was prudent and appropriate that the
investigation be done early and quickly so as to enable plaintiff’s counsel to
advise his two clients whether he could in fact act for both of them.

[61]        
In my view, the utilization of an independent adjuster in the
circumstances of this case was proper and reasonable. The cost of $325.12 in
this regard is allowed.

The form fee for Dr. Goetz and the accounts of JR Rehab Services and
OT Services

[62]        
The plaintiff spent $25 to complete a form required by the plaintiff’s
Alberta insurer, who is responsible for paying no-fault benefits. The defendant
disputes this claim, submitting that the costs relate to the no-fault benefits
of the Alberta insurer, or in the alternative, constitute “special damages”,
and the settlement of the case which involved the plaintiff accepting the
defendant’s formal offer included the plaintiff’s claim for special damages.

[63]        
The plaintiff relies on the “but for test”. But for the defendant’s
negligent driving, the plaintiff would not have been injured, would not have to
be treated, and would not have incurred the costs related to the form fee and
the services provided by JR Rehab. The plaintiff further submits that the provision
of this information to the defence had benefitted the defendant, in the sense
that it kept him appraised of the plaintiff’s circumstances and minimized the
effect of the defendant’s negligence on the plaintiff’s life.

[64]        
Although I have considerable sympathy, I find that these expenditures do
constitute “special damages” and are covered by the settlement. As that
settlement included the plaintiff’s claim for special damages, the form fee of Dr. Thomas
Goetz and the accounts of JR Rehab Services in the amount of $45 and $719.77
are disallowed.

conclusion

[65]        
The plaintiffs are entitled to their costs of this assessment and of the
failed assessment of April 17, 2014.

[66]        
Where the disbursements have been allowed, the plaintiffs are entitled
to the applicable taxes on those disbursements.

“District Registrar Nielsen”