IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150223

Docket: S24464

Registry:
Chilliwack

Between:

Tiffany Huizenga

Plaintiff

And

Owen Davidson and
Rhonda Popma

Defendants

Before:
Master Keighley

Reasons for Judgment

[1]            
This is an assessment of the plaintiff’s bill of costs following
settlement of her personal injury claim in November of 2014 for $199,725 plus
costs and disbursements to be agreed or assessed.

BACKGROUND

[2]            
The plaintiff’s claim arose from a motor vehicle accident which occurred
on July 25, 2010. The plaintiff was a passenger in a motor vehicle driven by
the defendant Popma and owned by the defendant Davidson. Popma apparently fell
asleep at the wheel and the vehicle crashed on Highway 1 near 232^nd
Street in Langley.

[3]            
The matter was scheduled for trial for 10 days commencing June 16, 2014
in Chilliwack but was “bumped” from the list as no judge was available to hear
it. Counsel attended before Grist J. in Chilliwack on June 12, and at that
time, Mr. Lester, for the plaintiff, advised the court that the matter
could be heard in New Westminster on the scheduled trial date. Mr. Baker,
senior counsel who had just assumed conduct of the file from a junior lawyer in
his office, was not available to deal with the matter due to personal
commitments. Mr. Lester sought a contribution to costs thrown away. From
the transcript, it appears that he said:

She’s ready to go. I am 95 percent prepared for trial. I have
interviewed all of my experts and all but one of my lay witnesses. Truth be
told, if I was told to go tomorrow, even though I’m not 100 percent prepared, I
could go tomorrow. And so we’re at that stage of preparedness.

I have just under $35,000 in disbursements, which my client
is paying interest to a settlement lender at 15 percent. I have $20,000 in
disbursements incurred this year in preparation for this trial, just to get
ready for this trial, and I’ve got five experts whom I’ve interviewed within
the last week from whom I don’t even have accounts. So that’s probably going to
be another six or $7,000 in disbursements that my client is going to have to
carry until we get next in front of a trial judge with 10 days of availability.
We all know that that probably means two years down the road.

[4]            
Some discussion then ensued between counsel as to an appropriate sum
representing costs thrown away and counsel eventually settled on $5,000 as an
appropriate amount for counsel fees, and in due course, Grist J. said:

All right. Well, you are agreed on counsel fees, so I can
award that, and I will say $5,000 towards costs — or disbursements thrown
away. And then ultimately you can settle that in the — in the fullness of
time.

[5]            
The entered order reads as follows:

THIS COURT ORDERS that:

1.         The trial in this matter is adjourned to January
12, 2015, for 10 days;

2.         The
defendants shall pay to the plaintiff costs thrown away for the preparation of
the trial which was scheduled to commence June 16, 2014, for 10 days, in the
amount of $5,000.00 payable forthwith;

3.         The
defendants shall pay to the plaintiff, disbursements thrown away for the
preparation of the trial which was scheduled to commence on June 16, 2014, for
10 days, to be agreed or assessed.

[6]            
Mr. Lester forwarded his claim for $10,178.76 for disbursements
thrown away to Mr. Baker and in due course received a cheque in this
regard for $7,968.20 together with a cheque for $5,000 representing counsel fees
thrown away.

[7]            
Some weeks later, the matter was rescheduled for trial in New
Westminster commencing January 12, 2015, but due to the settlement of the
claim, that date was not required.

[8]            
The case was a relatively complicated one, as the estimate of 10 days
would suggest. The plaintiff alleged injuries to her back, neck, shoulders,
arms and alleged that she suffered headaches, anxiety, depression,
post-traumatic stress disorder and sleeplessness. Her main complaint at the
time of settlement appeared to be that of chronic pain in her neck, back and
shoulders. The plaintiff alleged that, as a result of the accident, she had
been obliged to leave her career as a residential painter and had been obliged
to take on sedentary work at minimum wage. At trial she anticipated calling eight
lay witness, in addition to herself, and eight expert witnesses.

[9]            
The plaintiff’s amended Bill of Costs seeks reimbursement in the amount
of $15,461.60 for taxable costs, including taxes and the further sum of
$25,026.37 for disbursements, including taxes, for a total of $43,178.00

NON-CONTENTIOUS ITEMS

[10]        
The defendants do not oppose the amounts claimed for the following
tariff items:

[11]        
The defendants do not oppose the following non-taxable disbursements:

[12]        
Nor do they oppose the following taxable disbursements incurred prior to
April 1, 2013 (the date which followed the end of the Harmonized Sales Tax):

[13]        
Nor the following taxable disbursements incurred after March 31, 2013
(after which date PST and GST once again applied to these amounts).

CONTENTIOUS ITEMS

[14]        
The defendants take issue with the following tariff items:

[15]        
With respect to taxable disbursements incurred before April 1, 2013, the
defendants take issue with the following:

[16]        
With respect to taxable disbursements incurred after March 31, 2013, the
defendants take issue with the following:

DISCUSSION

Item 2

[17]        
The plaintiff claims 25 out of a possible 30 units.

[18]        
Mr. Lester deposes (Affidavit #1, sworn January 26, 2015) that he,
another partner, an associate lawyer, three paralegals, an articled student and
at least two legal assistants assisted in the preparation of the case for
trial. The lawyers and paralegals logged approximately 260 hours on the file
and many hours for various reasons are not recorded. Mr. Lester notes
extensive email traffic and correspondence in the file for the period in
question and says the matter had, at the time of the adjourned trial date, been
almost prepared for trial.

[19]        
Tariff Item 2 (more accurately, its predecessor, 1B) has been
characterized by former Registrar Sainty as a “catch all”, intended to
compensate the litigant for all work undertaken and for which compensation is
not made elsewhere in the tariff: Capital Resource v. Coronado Resouces, 2008
BCSC 692. I have not had an opportunity to review the correspondence and emails
and cannot, as a result, consider the purpose of these communications. Mr. Lester’s
affidavit refers to some 224 letter and 107 emails between counsel not
including correspondence for which provision is made elsewhere in the tariff.
The settlement amount was significant; the matter took a little more than four
years from the date of the accident to the date of settlement and a claim
anticipated to require 10 days of trial represents a significant undertaking.

[20]        
I will allow 20 units.

Item 10(a)

[21]        
The plaintiff claims five out of a possible 10 units.

[22]        
From after July 28, the defendants delivered four Lists of Documents,
listing, in all, 97 documents.

[23]        
When considering the appropriate tariff amount, the court must consider
not only the number of documents, but also the nature of the documents and the
process involved in obtaining disclosure: Albert v. Le Conseil Scolaire
Francophone de la Colombie-Britannique, 2007 BCSC 928. I have had an
opportunity to review the defendants’ Third Supplemental List of Documents
which, I am told assembles, in one list, all of the documents referred to in
the defendants’ previous lists. I have not had an opportunity to review the
documents themselves. It appears, however, that a large proportion of the
documents listed were either the plaintiff’s documents or sourced by her. It
is, of course, usually easier to receive rather than provide disclosure,
although in some cases documents provided by the opposing party will require
considerable scrutiny. I am unable to say that this was such a case.

[24]        
I will allow two units.

Item 11(a)

[25]        
The plaintiff claims five out of a possible 10 units.

[26]        
The plaintiff, in four Lists of Documents, listed a total of 64
documents, many of which, originally produced by the plaintiff, appear in the
defendants’ Lists. The level and nature of the plaintiff’s disclosure, insofar
as I can ascertain that from the description of the documents alone, seems
unremarkable.

[27]        
I will allow three units.

Item 14

[28]        
The plaintiff claims four out of a possible five units.

[29]        
The plaintiff delivered two Notices to Admit dated April 25 and June 3,
2014. The first of these was, in large part, denied by the defendants. The
second Notice, essentially in the same form as the first, was largely admitted
after counsel had discussed the contents further. The defendants say that,
given that the second Notice is essentially a duplication of the first, only one
unit should be allowed.

[30]        
In the case of Semenoff v. Bridgeman, 2014 BCSC 1845, Registrar
Nielsen, considered a case in which five Notices had been delivered and
determined that this tariff item contemplates that multiple Notices may be
given, but the tariff range is not expanded beyond the maximum of five units.

[31]        
In this case, I am satisfied that the plaintiff’s delivery of the second
Notice, in light of the defendants’ denials, lifts this case above the bare
minimum.

[32]        
I will allow two units.

Item 15

[33]        
The plaintiff claims five out of a possible 10 units.

[34]        
The defendants delivered two Notices to Admit and the plaintiff replied
to both.

[35]        
The first Notice sought the admission of two facts and one document. The
plaintiff admitted the facts and denied the document. The second Notice sought
admissions with respect to 28 facts and 18 documents, requiring a three page
response. Upon reviewing the response it appears that counsel was obliged to
conduct a significant review of medical and other documentation in formulating
a response.

[36]        
I will allow four units.

Item 29

[37]        
The hearing of this assessment took half a day. The plaintiff claims one
unit for preparation, which I will allow.

Item 30

[38]        
The hearing of this assessment took half a day. The plaintiff claims two
units which I will allow.

Item 31

[39]        
The plaintiff claims two out of a possible three units.

[40]        
The parties attended a Trial Management Conference on April 15, 2014.
There is no evidence before me as to the length of the conference. I would
usually expect a TMC to require an attendance of one-half hour or less. I will
allow one unit.

Item 32

[41]        
The plaintiff claims two and a half out of a possible five units.

[42]        
I will allow one unit. There is no evidence to suggest that the TMC was
of unusual length or difficulty.

Item 34

[43]        
The plaintiff claims five units.

[44]        
As noted above, counsel attended the Chilliwack Registry on June 12,
2014, to speak to the matter after having been advised by registry staff that
the matter could not proceed on the scheduled date, namely, June 16, 2014. Mr. Lester
says that he was almost fully prepared for trial at that time and says that he
was prepared to have the matter transferred to the New Westminster registry as
a judge was available there to begin the trial on the scheduled date. The
defendants, however, were not prepared to agree to a change of the trial venue.
As a consequence, Grist J. awarded the plaintiff “costs thrown away” in
any event of the cause.

[45]        
The defendants say that the plaintiff was amply compensated by this
order for preparation undertaken in anticipation of the June 16, 2014 trial
date. Although the matter was subsequently reset for January 2015, say the
defendants, the claim was settled on or about November 20, 2014, almost two
months prior to the rescheduled trial date and that Mr. Lester’s affidavit
discloses no evidence of any preparation prior to that trial date.

[46]        
The Supreme Court Civil Rules, Appendix B, s. 4(4) provides:

(4)        If, in
the Tariff, units may be allowed for preparation for an activity, the registrar
may allow units for preparation for an activity that does not take place or is
adjourned up to the maximum allowable for one day.

[47]        
Tariff item 34 reads:

Preparation for trial, if proceeding set down for each day of
trial – 5 units.

[48]        
The decision of Groberman J., as he then was, in Ebrahimi v. Stevenson,
2006 BCSC 983 dealt with the apparent tension between these two provisions by
endorsing what he referred to as the “longstanding and uniform practice of all
registrars” in treating the confluence of the two provisions as allowing a
claim for one day for preparation for a trial which does not proceed,
regardless of length.

[49]        
It seems to me that had this matter settled prior to the June, 2014 date;
the plaintiff would have been entitled to no more than five units for trial
preparation. While the plaintiff might have been entitled to a further units
for preparation for the second trial date (Roesner v. Roesner, (1997),
32 B.C.L.R. (3d) 289) the plaintiff was amply compensated for preparation by
the $5,000 award.

[50]        
I will allow no units for this item.

Item 41

[51]        
The plaintiff claims one unit for the entry of a certificate of costs.

[52]        
Tariff Item 41 may only be invoked where Item 30 does not apply. I have
awarded two units under Item 30.

[53]        
Accordingly I will award no units for this item.

[54]        
The plaintiff claims one unit for the entry of Grist J.’s order. I will
award one unit.

DISBURSEMENTS

Scanning

[55]        
The plaintiff claims $9.75 and $191.10 for scanning. Mr. Lester
deposes that these figures are gleaned from the firm’s tracking software which
requires the entry of the file number on each scanning job and with respect to
the purpose of this work says:

Scanning in this case was done for several purposes including
sending materials to defence counsel and to some of our experts on an expedited
basis which, as we got closer to trial became necessary. The scanning of
documents serves as an adjunct to faxing of materials but is not a duplicative
[sic].

[56]        
There is no evidence before me as to what materials were transmitted or
why, beyond this general statement. Nor is there any evidence of cost beyond
what one might assume to be usual office overhead, rather like a local
telephone call. The implications for the assessor as a result of this new
technology were discussed in detail by master McNaughton in the case of Turner
v. Whittaker, 2013 BCSC 712:

[9]        Scanning and preparing electronic copies of
documents for use by experts, for document sharing, and for use in preparation
for, and at discovery and trial, is a reality of today’s litigation practice
and the courts are encouraging this direction. Master Muir expressed this in Naidu
v. Cahill, an unreported decision, released on June 26, 2012. There, she
allowed a disbursement for scanning by an outside document assembly service.

[10]      In Stapleton v. Charambidis, 2010 BCSC 1642,
Master Baker endorsed the use of scanned documents which he felt encouraged
efficiency and, eventually, would reduce costs. I agree with his views. In the
absence of complete evidence, but to encourage the use of electronic documents,
he allowed $500 for scanning. He does not set out the basis on which he arrived
at the allowed amount.

[11]      In this case, the claim is for a per page amount
for in-house document scanning. In his submissions, Mr. Gibson indicated
that Primafact, his firm’s scanning system, was purchased for approximately
$50,000. It requires an ongoing licensing fee for access to the software and
for updates, a maintenance contract, and dedicated staff whose sole function is
to scan and name documents in accordance with a naming protocol.

[12]      In his submissions on behalf of ICBC, Mr. Harris
argues that it is not appropriate to assign a per-page cost for scanning
documents. He submits that, unlike photocopying, which involves equipment,
paper and toner, once a document has been scanned, it is virtual and can be
transferred on disc or memory stick with minimal additional cost. He suggests
that the cost of scanning should be considered an overhead cost.

[13]      Conceptually, because scanned electronic documents
are a substitute for photocopies, and because the courts are encouraging use of
this new technology, I conclude that it is not just an overhead cost and that a
disbursement amount should be allowed. Rather than set a block amount for each
case in which scanning is used, I conclude that it is more appropriate to allow
an amount per page for scanned documents. That is because scanning is intended
to reduce, and eventually replace, photocopying and both processes create an
image of each page of an original document.

[14]      The Administrative Direction with respect to
photocopying allows $0.25 cents per page. I was not persuaded that it is
reasonable to allow the same amount for scanning. I accept that scanning
involves an initial capital outlay for equipment and ongoing support costs
which, based on Mr. Gibson’s submissions, may be higher than those for
photocopying. However, most of those costs would be part of a firm’s overhead.
Scanning does not involve paper and toner; it creates electronic documents
which are viewable and transferrable electronically. That suggests that some
lesser amount is appropriate.

[15]      In all the circumstances, and because the
appropriate rate is not capable of mathematical calculation (at least not on
the evidence before me in this case), I allow scanning charges at the rate of
$0.15 cents a page.

[16]      In determining the reasonableness of the amount
claimed here for scanning, I also consider that scanning serves many purposes.
Here, for example, counsel is greatly assisted in handling the file as the
documents are key-word searchable and, presumably, can be sorted on an issue by
issue basis. They are portable and accessible by computer. They are easily
located in preparation for examinations for discovery and trial and can be put
before a witness quickly. They are also available for digital presentation of
evidence at trial.

[17]      In his affidavit, Mr. Gibson says that those
experts who were comfortable working with electronic copies of Ms. Turner’s
medical records were provided with them on disc. He was able to demonstrate, on
the record, that this also resulted in some courier and photocopying cost
savings.

[18]      It is inevitable that it will take time for the
legal and medical communities, and the courts, to become fully comfortable with
electronic documents and that, in the interim, there will be an ongoing need
for both scanned copies and photocopies. As a result, it is not possible to
directly correlate a reduction in photocopies and the use of scanned. The
reasonable disbursement amount will therefore be somewhat rough and ready.

[19]      Taking into account the multiple purposes for
scanning documents, and that the concurrent use of two different technologies
has some cost duplication, I reduce the total number of pages scanned by 20%.
It is not reasonable to expect ICBC to compensate for counsel’s convenience or
for duplication.

[57]        
The amounts claimed are modest enough in the context of this case and I
will allow them as claimed.

Photocopies

[58]        
The plaintiff claims $205 and $1,526.25 for photocopies.

[59]        
Assessment of photocopying cost has been held to be a “rough and ready”
exercise.

[60]        
As then Registrar Blok stated in Sovani v. Jin, 2006 BCSC 855, at
paras 4 and 5:

[4]        The assessment of photocopying
costs is typically a rough-and-ready exercise, which is very much in accordance
with the comments of the English Court of Appeal in a case called Re
Eastwood, [1974] 3 All E.R. 603 (C.A.), where the Court said that the
assessment of costs was a matter of rough justice insofar as it admitted of
much sensible approximation, or words to that effect. That is exactly what
registrars must apply when assessing photocopying expenses or considering the
volume of photocopying claimed in a case. Thus it is not an exercise of
arithmetic or math or the examining of photocopying machinery expenses or
matters of that sort, but is often looking at an array of binders, a collection
of banker’s boxes, assessing what copies were needed for experts, what document
discovery was involved, whether there was a jury such that they required
individual copies, and all those sorts of matters, and applying experience
gained from numerous other cases, to arrive at a sensible approximation of the
volume of necessary copy work.

[5]        It is that approach that I
typically apply in assessing photocopying. I also tend to assess it in a way
that discourages counsel from assuming that wholesale photocopying can be
undertaken without fear of non-recovery at the end of the day, as it is, I
think, a universally held view from the bench that there is so much paper these
days that anything that can be done to reasonably discourage excessive
photocopying ought to be done.

[61]        
Applying those factors, it seems to me that, given the relatively modest
amounts claimed in the context of a case of this complexity, the amounts
claimed are appropriate, perhaps even understated.

[62]        
I will allow the claims for photocopying as presented.

Faxes

[63]        
The plaintiff claims $31.15 and $85.40 for long distance fax charges.

[64]        
There is no evidence before me as to when or to whom or for what purpose
the fax transmissions were made but the amounts claimed are modest enough in
the context of this claim. I will allow the amounts as claimed.

Postage

[65]        
The plaintiff claims $25.77 and $184.81.

[66]        
The defendants say that, in the absence of evidence as to why postage is
not simply an item of office overhead, the claim should be disallowed: Dakin
v. Roth, 2013 BCSC 1018. I agree, as there is no such evidence before me.

[67]        
The claim for postage is disallowed.

Long Distance

[68]        
The plaintiff claims $4.00 and $22.00 for long distance telephone
charges. For to the purpose of these calls, Mr. Lester says at para. 70
of his affidavit:

I am informed by Carrie Vaughn that numerous telephone calls
were made from our office to Rob Carson’s office in Vancouver, Michele Hodson
and Lana Malinowski in Chilliwack, Dr. Caillier’s office in Delta, Derek
Nordin’s office in Vancouver and Defence Counsel in Chilliwack, as well as to
other people which are al outside the local calling area of Abbotsford. Long
distance charges are estimated by the caller at the time the phone calls are
made, depending on the length, and are likely an under-estimation of the actual
amount charged to our firm. Long distance telephone charges are being claimed
at $26 between July 25, 2010 and November 20, 2014.

[69]        
These charges are, again, modest in the context of this litigation, and
I will allow them.

McCrodan Mediation

[70]        
The plaintiff claims $337.50 for this item.

[71]        
The mediation was conducted May 26, 2014, prior to the first trial date.
It did not result in settlement. This amount represents one half of the
mediation fee charged to the plaintiff.

[72]        
I will allow this item.

Travel

[73]        
The plaintiff claims $176.24.

[74]        
Mr. Lester says that, in preparation for trial, he met with and
interviewed three witnesses who were unable or unwilling to attend his office. He
deposes that he also attended a pre-hearing conference relating to this
assessment on January 19, 2015 and this assessment on January 30. He claims for
this travel at the rate of $0.30 per kilometre.

[75]        
None of these claims appear to relate to the travel claimed and allowed
under Item 48, which dealt with attendance at the TMC and the attendance before
Grist J.

[76]        
In the case of Pardo v. Young, 2013 BCSC 2203, former Registrar
Sainty said at para. 44:

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

[77]        
On this basis, the claims for travel are disallowed.

CBI Sport and Spine

[78]        
The plaintiff claims $9.50 as the balance owing on this account for
pretrial preparation, after crediting the amount paid on this account by
counsel from the amount received from the defendants as credit for
disbursements thrown away.

[79]        
I will allow this amount.

Michele Hodson Addendum Report

[80]        
The plaintiff claims $1,740.00, representing the balance of a $2,740.00
invoiced from Michele Hodson, a Certified Occupational Therapist, for, inter
alia, the preparation of a rebuttal on the eve of the first trial date. The
defendants have already paid $1,000 towards this account from the disbursements
thrown away award.

[81]        
As to the necessity for this report and for the report of Dr. Caillier,
consideration of which follows, Mr. Lester says, at paras. 72 and 73
of his affidavit:

72.       Prior
to the scheduled trial date of June 16, 2014, expert reports were delivered by
the defence which, if accepted by the Court, would have undermined the
Plaintiff’s case and supported many of the positions taken by the defence on
the several heads of damage at issue. Upon receipt of additional medical
information made available to us after some of the plaintiff’s expert reports
had already been prepared and served, I considered it necessary to send such
updated information to our experts, including Dr. Caillier, our retained
physiatrist, and Michele Hodson, our expert occupational therapist.

73.       It is
my practice to always ensure that my experts have the most up-to-date
information so that they do not face criticism or attack upon cross examination
for not having all relevant information before them in order to support their
opinions.

[82]        
The account appears to claim $1,000.00 as a “rush rate” without any
evidence as to why such an additional charge was appropriate.

[83]        
I regard $1,740.00 as an appropriate, proportionate fee and, as the
defendants have already paid $1,000 toward this invoice, I will allow the
balance of $740.

Dr. Caillier Addendum Report

[84]        
The plaintiff claims $400 for this addendum report prepared by a
physiatrist.

[85]        
I have had an opportunity to review Dr. Caillier’s addendum report
and am satisfied that, at modest cost, it would have assisted counsel in
cross-examination at trial and represents a succinct summary of her opinion in
the context of the materials placed before her.

[86]        
I will allow the disbursement as claimed.

SUMMARY

[87]        
The plaintiff’s costs are therefore allowed as follows:

“Master
Keighley”