IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20141031

Docket: 50528

Registry:
Vernon

Between:

Tyler
Amiel

Plaintiff

And

Marshall
Ens

Defendant

Before:
Master R.W. McDiarmid

Reasons for Judgment

[1]            
This is an assessment of disbursements only pursuant to a settlement reached
between the parties which occurred prior to the trial scheduled to take place
on July 7, 2014. I was advised by both counsel that the plaintiff’s claim was
settled before trial for $56,000.00, plus disbursements.

[2]            
The background is set out in the affidavit of plaintiff’s counsel’s
legal assistant, Katelin Burnett, in her first affidavit made and filed
September 26, 2014. In paragraph 2, she deposes as follows:

2.         The Plaintiff’s claim against
the Defendant arose as a result of a motor vehicle collision that occurred on
December 14, 2010. At the time of the motor vehicle accident the Plaintiff was
19 years old. As a result of the motor vehicle collision the Plaintiff suffered
soft tissue injuries in his neck and shoulders, and numbness and weakness in
his hands.

[3]            
The defendant filed a response to civil claim on May 17, 2013 and a
notice of fast track action on May 22, 2013. Liability for the collision was
admitted.

[4]            
 Several cases have considered Rule 15-1(15) of the Supreme Court
Civil Rules [Civil Rules] in the context of settlements before trial
and established that there is a $6,500.00 “cap” available for costs where fast
track cases settled before the commencement of the trial: Christen v.
McKenzie, 2013 BCSC 1317 at para. 35. In submissions, both counsel
referenced this settlement amount in the context of directing me to the
proportionality consideration set out in Rule 1-3(2) of the Civil Rules
which imports the concept of proportionality in relation to the amount involved
in the proceeding, the importance of the issues in dispute and the complexity
of the proceeding. As was put by defendant’s counsel, this case settled for
“$50,000.00 give or take”, taking into account the costs which could probably
have been $6,500.00.

[5]            
The disputed disbursements are as follows:

[6]            
Pursuant to a retainer agreement appended to Ms. Burnett’s affidavit #1
as exhibit Q, the plaintiff agreed to pay interest at the rate of ten percent
per annum, calculated monthly on disbursements incurred through the lawyers and
which the lawyers have not been reimbursed by the client.

[7]            
In Ms. Burnett’s affidavit #1, at paragraph 28, she deposes:

…Due to his father’s terminal
cancer, which caused his father to be unemployed during the litigation of this
matter, the Plaintiff was unemployed during the litigation and could not fund
the disbursements from his own finances nor could he obtain other financing. He
agreed to pay interest on disbursements as result.

[8]            
In her submissions, defendant’s counsel did not dispute the plaintiff’s
entitlement to disbursement interest, but sought confirmation that the interest
is charged at a reasonable rate, six percent, and only on disbursements that
have been allowed.

[9]            
The starting point for assessing a disputed disbursement is Rule 14-1(5)
of the Civil Rules, which reads as follows:

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

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

(b) allow a reasonable amount for those disbursements.

[10]        
A summary of the applicable legal principles was set out by District
Registrar Nielsen in 2014 BCSC 1844 at para. 11 as follows:

[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).

Photocopies

[11]        
In the defendant’s submissions, counsel submits at paragraph 13 as
follows:

13.       The Defendant respectfully
submits that the Plaintiff’s claim is for all photocopies and printing on the
file, and has not been confined to what was necessary or [properly] incurred.
Some of the printing and copying would be part of overhead.

[12]        
In paragraph 11 of Ms. Burnett’s affidavit #1, the deponent states:

11.       With respect to photocopies,
long distance, fax, scanning, postage charges, BC Online Court Services Online
(CSO) filing fees and BC Online FOI fee, attached hereto and marked as Exhibit
“A” is a true copy of the ledger showing charges made to the general ledger in
the course of litigation. Photocopy costs and printing charges have been
combined and itemized as a photocopy expense as many documents are now scanned
and printed, rather than photocopied in the normal course of day-to-day
management of files.

[13]        
Exhibit page 7 of exhibit A to Ms. Burnett’s affidavit #1, details
photocopies charged to the file between December 7, 2012 and August 20, 2014.
Exhibit pages 9 to 15 detail printing charges charged to the file between
December 7, 2012 and August 20, 2014.

[14]        
Photocopy charges total $151.75; printing charges total $492.75, so that
$644.50 in photocopying and printing charges were incurred, according to the
evidence presented. The plaintiff is claiming $601.00, representing $2,400.00
for photocopies.

[15]        
It is apparent from the evidence that some of the printing would be
considered overhead. The defendant submitted that there should be a 25 percent
reduction and that photocopying be allowed at $450.00. The reduction would be
for a portion of the photocopying and printing, which would be considered
overhead.

[16]        
Ms. Burnett’s affidavit #2 appended to it as exhibit B, tab A of the
plaintiff’s binder of documents. Exhibit C contained tab B of the plaintiff’s
binder of documents. Exhibit D contained tabs C though H of the plaintiff’s
binder of documents. All of these were four inch binders. The affidavit also
exhibited a copy of the application record for an application to adjourn the
trial held June 23, 2014.

[17]        
Ms. Burnett’s affidavit #2, exhibit B, comprised documents set out in
three tabs. The first tab contained approximately 40 pages, representing the
Insurance Corporation of British Columbia’s (“ICBC”) adjuster’s file. The
second tab represented the ICBC Freedom of Information file. That tab consisted
of two index pages and 296 numbered pages. In total, exhibit B contained well
over 300 pages of photocopying. Exhibits C and D appeared to contain
approximately the same number of photocopies.

[18]        
As has been oft stated by registrars, assessing photocopies when
considering which ought to be allowed and which constitute overhead, is an
exercise in “rough justice”. I determine that $100.00, or approximately 20
percent of the printing claim, ought to be deducted. Plaintiff’s counsel has
proven the recording of $644.50 in photocopying and printing charges, but only
claims $601.00. I deduct $100.00 from the claimed amount and allow photocopies
at $501.00.

Scanning

[19]        
The onus of proving disbursements is on the party claiming them. In the
K. Burnett #1 affidavit at paragraph 11, previously set out above, the deponent
deposes that “many documents are now scanned and printed, rather than
photocopied in the normal course of day-to-day management of files.”

[20]        
I have already allowed photocopying with a deduction for overhead.

[21]        
Scanning charges may be appropriate in circumstances where bulk scanning
is utilized, presumably for the purpose of storing documentation on searchable
CDs or memory sticks. The issue was canvassed by Master Young, sitting as a
registrar, in a case provided to me by plaintiff’s counsel, Arnason v. Nerio,
2014 BCSC 185, where at para. 15 Master Young recites Master McNaughton’s
consideration of the efficiency and cost saving of scanning documents in Turner
v. Whittaker, 2013 BCSC 712. As set out by Master McNaughton and adopted by
Master Young, scanned electronic documents are a substitute for photocopies and
are not just an overhead cost, but rather a cost which can appropriately be
allowed at an amount per page, allowed by Master McNaughton at a rate of $0.15
cents per page with a 20 percent reduction to take into account the multiple
purposes for scanning documents and the inherent cost duplication.

[22]        
Using the same approach, and noting that the scanning charges until
December 2012 were charged by the plaintiff’s lawyers at $.10 cents per page, I
reduce scanning by $10.70, and allow scanning charges at $50.00.

BC Online Fee for FOI Request

[23]        
In the K. Burnett #1 affidavit, the deponent deposes at para. 12 the
following:

12.       In the normal course of
day-to-day management of a file, requesting the ICBC claim file pursuant to the
Freedom of Information and Protection of Privacy Act (“FOI”) is standard, as
the ICBC file requested and received from the claim adjuster is often less
extensive than the one received pursuant to FOI.

[24]        
As set out above, I reviewed exhibit B to the K. Burnett #2 affidavit.
The disclosure provided by the FOI request was much more extensive than the
adjuster’s file. One of the documents dated 08 Apr 13 consisted of a 21-page
document with substantial redactions, presumably for privileged information or
information for which disclosure is not required pursuant to the applicable
privacy legislation. That document was not part of the claim adjuster’s file.
It contained on page 1 a note setting out the contents of a discussion between
the adjuster and the plaintiff, which included the following:

DISCUSSED FACT VEHICLE WAS A T/L
AND THAT TP IS LIABLE

[25]        
The FOI documents contained a comment on page 3 dealing with liability,
and making the note “Liability A100 against TP” presumably confirming that
liability would not be contested. The FOI documents also contain a note of a
meeting with the plaintiff and his mother which documents some discussion about
the plaintiff’s injuries and loss of work. The FOI documents contain photocopies
of four notes by Dr. D.J. Williams photocopied on disclosure pages 59, 60 and
61. From my review of what was disclosed from the ICBC’s adjuster’s file only
the clinical note on FOI disclosure page 61, a note from Dr. Williams dated
December 21, 2010 was provided to the adjuster; the adjuster does not appear to
have been provided with a note dated March 9, 2011, which states “continues to
benefit from physio 2 times/wk”, nor does it contain two notes dated May 25,
2011, one of which was directed to ICBC to “request a kinesiologist to design a
rehab program to restore range of motion and strength (indistinct) and
shoulders”, and one “request an extension of physio to neck and shoulders for 4
more weeks”.

[26]        
I conclude that not only was the documentation received from the FOI response
more extensive than what had been received from the adjuster, but it contained
information relevant to the plaintiff’s claim, both with respect to liability
and damages. I find that the request was proper. The amount involved is
reasonable, and the claim is allowed at $45.00.

[27]        
In Rolston v. Canadian Northern Shield Insurance Co., 2014 BCSC
1896, Mr. Justice Dley writes:

[12]      Litigation has become an expensive process.

[13]      Too often, litigation has become a haven for
experts to dress up evidence within the guise of opinion evidence when the
facts do not need such an intervention. In those instances, the litigation
costs unnecessarily increase as does the time required for trial.

[14]      A party is free to
engage whatever expert it deems to be of assistance in preparing its case.
However, that party should not necessarily expect that the disbursements
incurred will be passed on to the losing party. It is to be emphasized that the
disbursement must have been necessarily or properly incurred.

Meridian Rehab Claims

[28]        
Paragraphs 18 and 20 of the K. Burnett #1 affidavit are as follows:

18.       Attached
and marked as Exhibit “G” is a true copy of the clinical records of Dr. Jalme
Yu. Dr. Yu notes, in her clinical records, that the Plaintiff’s numbness and
weakness in his hands are due to an underlying myofascial discomfort in his
shoulder region.

20.       Attached hereto and marked as
Exhibit “I” is a true copy of the Functional Capacity Evaluation report of
Kaitlynn Dewhirst.

[29]        
In paragraph 22 of the K. Burnett #1 affidavit, the deponent states:

22.       Attached hereto and marked as
Exhibit “K” is a true copy of a letter, authored by Lydia Phillips, from
Meridian Rehabilitation Consulting Inc. regarding the cost breakdown of the
Cost of Future Care report. Lydia Phillips provides an explanation as to the
process needed to produce a Cost of Future Care report.

[30]        
I have not reproduced the balance of paragraphs 20 and 22 because they
purport to restate what is set out in the exhibits, and thus constitute argument,
which should not be in an affidavit.

[31]        
I reviewed the exhibits referred to by the deponent. The materials
confirm that Dr. Jalme Yu is a specialist in physical medicine and
rehabilitation. Exhibit G, exhibit page 23, under “IMPRESSION/PLAN”, Dr. Yu
writes:

Mr. Amiel is an otherwise healthy gentleman with a
two-year history of numbness and paresthesias in the hands and reported
subjective weakness. He does not have any objective clinical findings of
local neurological deficits. He does have some palpable trigger points but
these are latent and not causing symptoms at this time. Previous MRI has been
normal and his electrodiagnostic studies were repeated today and again were
normal.

I believe that his ongoing symptoms are likely due to some
underlying myofascial discomfort in the shoulder region, although he does not
report significant pain. He does however have a significant biomechanical issue
with the head-forward and shoulder-rounded posture. I discussed with him that
his findings and investigations overall are very reassuring; that there is no
more significant exercises that he has previously been advised by a personal
trainer and by Physiotherapy. We reviewed some of the scapular stabilization
and posture exercises today. He [is] happy to continue these in a self-directed
manner. No other treatment or investigations are recommended at this time.
Tyler was happy with our discussion and his questions were answered. No further
followup has been arranged.

Thank you for involving me in his care.

Jalme C. Yu

Dictated by: Yu, Jalme Chiyan            Dictated
Date: 10/05/13 0953

[My
emphasis]

[32]        
I was referred to extracts from the plaintiff’s examination for
discovery appended to the first affidavit of Tracey Hobson, a legal assistant assisting
counsel for the defendant. Questions and answers 183 to 188 from the plaintiff’s
examination for discovery are as follows:

Q         In 2011 when you went back to work at The
Rise, did you have any difficulty performing any of your usual job duties
because of the injuries you suffered in the accident?

A          No.

Q         What about in 2012? Did you have any trouble
performing any of your job duties?

A          No.

Q         From the records I have, it appears that you
first saw Dr. Williams following the accident on December 21^st,
2010, so a week after the accident.

A          Okay.

Q         Does that sound about right?

A          Yes.

Q         And one of the reasons that you were there to
see Dr. Williams that day was to have the stitches removed.

A          Yeah.

Q         Does that sound about right to you?

A          Sounds about
right, yeah.

[33]        
Questions and answers 210 to 212 from his examination for discovery are
as follows:

Q         When do you first remember noticing that there
was sensation or some issue with your thumbs after the accident?

A          Pretty much right after the accident. Not
that day but the following days.

Q         And how would you describe what you felt on
that day after the accident?

A          Just an extreme weakness in my thumbs and my
hands.

Q         In your thumbs and your hands?

A          Well, my thumbs
are part of my hands, but yeah.

[34]        
Questions and answers 241 to 246 are as follows:

Q         Had you plateaued before you stopped
physiotherapy or sometime afterwards?

A          No, before I stopped.

Q         By the time your symptoms had plateaued, do
you agree that you were only experiencing occasional numbness in your thumbs?

A          No.

Q         What do you say the situation was when your
symptoms plateaued in your thumbs?

A          It was a daily issue, every day.

Q         But not all day long?

A          Not all day long.

Q         By the time the symptoms in your thumbs
plateaued, were you able to link the symptoms to any particular activity?

A          When they would hurt more or —

Q         Yes?

A          — or affect me
more? Yeah. Playing music was a big one. Opening jars, cans. Just using, you
know, can openers, anything with grip. Any tools I used, I noticed an issue.
Even texting with my thumbs.

[35]        
Question and answer 306 is as follows:

Q         On August 23, 2012, Dr. Williams makes a note
that you have weakness in both hands and you noticed decreased grip strength
opening jars and playing guitar, and that you don’t feel — sorry, that you
feel you’ve had some improvement with exercise but you’re not back to the
strength you had before the accident, and that your improvement appears to have
plateaued. Is that when the plateau occurred, about 2012, or do you think it
was around —

A          I would say as
far as my hands, they plateaued earlier, kind of during physiotherapy.

[36]        
Questions and answers 310 to 312 is as follows:

Q         And it’s just holding onto things or is it
actually using your thumbs?

A          No. It’s just a lack of strength. It’s like a
numb, weakness.

Q         Has anyone tested your grip?

A          No one has tested it until Aaron — Mr.
Damini —

Q         Aaron Damini.

A          — just this past
physio, yeah.

[37]        
Paragraph 2 of the Hobson #1 affidavit deposes that the examination for
discovery was conducted on November 27, 2013.

[38]        
On December 23, 2013, counsel for the defendant wrote to plaintiff’s
counsel. The body of the letter reads as follows:

I have been advised of your intention to seek a Functional
Capacity Evaluation, Cost of Future Care Report and/or Economist Report in
support of your client’s claim for damages.

The Defendant takes the position that any or all of these
reports are unnecessary and unreasonable in light of the plaintiff’s sworn
testimony at the Examination for Discovery on November 27, 2013, that his neck
had recovered.

In the event that the plaintiff
seeks any of these reports, the defendant will argue that the costs of the
reports should not be awarded against him.

[39]        
The exact date that the functional capacity evaluation was ordered is
not before me in evidence, but I am satisfied that it was ordered at some point
after the December 23, 2013 letter was sent to plaintiff’s counsel and before the
assessment which took place on January 14 and 15, 2014. The test is whether, at
the time the report was ordered, was it either necessary or proper. Plaintiff’s
counsel has referred me to my decision in Hayhurst v. Rees, 2014 BCSC
1714. In paras. 13-14 of that decision, I reviewed the requirements for
establishing a claim for a loss of earning capacity. Plaintiff’s counsel has
provided me with the case I referred to in para. 13, Toopitsin v. McMullen,
2014 BCSC 1486, a decision of Mr. Justice Rogers. In para. 38 of that decision he
writes:

[38]      Some claims for
reduction of earning capacity are amenable to calculation and actuarial
assessment, but many are not. The claims that are not typically involve
claimants who have not yet entered the work force or have settled on a career
or occupation. In those cases, the loss is assessed rather than tabulated. The
assessment process must take into account all of the relevant evidence relating
to the claimant’s circumstances as well as the positive and negative
contingencies that do or will bear upon the claimant’s working life.

[40]        
In her written submissions on behalf of the defendant, counsel for the
defendant submits at paras. 8-9 as follows:

8.         The
Defendant respectfully submits that when the assessment was requested from
Meridian Rehabilitation, there was little possibility that this Plaintiff could
have made a successful claim for loss of earning capacity resulting from the
accident. He missed little time from work, most of [his] symptoms had resolved,
and he denied having difficulty with work tasks when he was working.

9.         In [the] alternative, if it was
necessary or proper for counsel to have requested that the Plaintiff be
assessed by an occupational therapist, that assessment should have been
confined to the residual symptoms, that is the sensory changes in the thumbs.
It is clear from the report, and the number of hours spent on the assessment
and the report, that Ms. Dewhirst ran a full range of tests on this Plaintiff
and determined, not surprisingly, that he had no restrictions or functional
limitations in strength, mobility, and agility. The only restrictions were
found in dexterity. The Plaintiff was asked to rate his pain at various times
over the assessment. His pain ratings for neck and shoulders were zero, and one
for thumb/hands.

[41]        
Like the issue in Hayhurst, the question is whether there was a
real and substantial possibility of a future event leading to an income loss
when taking into account the plaintiff’s situation.

[42]        
Unlike the plaintiff in Hayhurst, this plaintiff had not yet entered
the workforce, apart from casual work and summer work while he was attending
Okanagan University College. At the time of the motor vehicle accident, he was
19 years of age; at the time of settlement he was 23 years old.

[43]        
Unlike Mr. Hayhurst, who had sustained a number of injuries, in addition
to the injuries he was claiming in the motor vehicle litigation, this plaintiff
was apparently in good health prior to the motor vehicle accident of December
14, 2010. As is apparent from the extracts from his examination for discovery,
while the accident did not prevent him from performing any of his present job
duties, his concern with weakness in both hands and decreased grip strength had
plateaued, but remained present at the time of the examination for discovery,
less than two months prior to the plaintiff attending Meridian Rehabilitation
Consulting for his assessment.

[44]        
Competent counsel, when reviewing this testimony from the client,
corroborated to an extent by the examinations of the client’s treating physiatrist,
need to consider the possibility of a loss of earning capacity. It is not much
of a stretch to conclude that where a client is having numbness and weakness in
his hands, that might well impact on many future job prospects. I find that the
retention of Meridian Rehabilitation Consulting to assess the plaintiff was
proper, given what the plaintiff and his counsel knew at the time the
assessment was requested.

[45]        
As an alternative submission, defence counsel submits that the
assessment should have been limited to “the residual symptoms that is the
sensory changes in the thumbs.”

[46]        
The reason for referral for the functional capacity evaluation was
limited to the ongoing symptoms. The functional capacity evaluation report was
exhibited to the K. Burnett #1 affidavit as exhibit “I”.

[47]        
In the general information section of the report, the client’s name,
date of birth and date of injury are stated, and then under a heading “Primary
Problem(s);” the author writes “Bilateral thenar eminence weakness and
numbness.”

[48]        
On exhibit page 28, the author sets out facts and assumptions. In that
section, Ms. Dewhirst writes:

·       
Dr. Yu believes that ongoing symptoms [thumb numbness/weakness]
are likely due to some underlying myofascial discomfort in the shoulder region,
although [she] does not report significant pain in that area.

[49]        
At exhibit page 27, the author, Kaitlynn Dewhirst writes as follows:

3. Reasons for referral

Mr. Amiel was referred to this facility to answer the
following questions about his current work/functional ability:

·       
What are Mr. Amiel’s current functional tolerances?

·       
What are Mr. Amiel’s functional abilities and limitations in
regards to daily activities?

·       
What are Mr. Amiel’s functional abilities and limitations with
respect to employment?

·       
What is Mr. Amiel’s functional prognosis?

·       
Would Mr. Amiel benefit from rehabilitation services?

[50]        
Ms. Dewhirst was properly instructed to perform a functional capacity
evaluation focussing on the hand/thumb numbness and weakness.

[51]        
While I understand the defendant’s submission that the report should be
limited, it is hard to see how this could be done. Logically, a functional
capacity evaluation must evaluate the subject and must comment on how the
primary problem impacts on the plaintiff’s functional capacity. That is what
the expert is retained to do. It would make no sense (and probably render a
report inadmissible, or of limited probative value) if the evaluator was told
to only deal with the plaintiff’s hands and thumbs. That is not what a
functional capacity evaluation consists of; it consists of all of the testing,
so that the effect of the accident and the injuries sustained in the accident
can be analyzed in the context of the plaintiff’s functional capacity.

[52]        
As has been off-stated in other decisions, experts to some extent charge
what they charge. In Hayhurst, the functional capacity report was
charged at $4,875.00. This report was charged at $4,050.00.

[53]        
I find that the commission of this report was reasonable and justified
and did not fall into the category of extravagance.  As set out by Master Bouck
in Arnason, at para. 39, counsel for the plaintiff had a duty to ensure
that all areas of the plaintiff’s claim were supported with reliable evidence.

[54]        
I have also considered proportionality provisions in Rule 1-3(2) of the Civil
Rules. No other expert reports were commissioned. The plaintiff saw a
physiatrist, attended physiotherapy and was treated by family physicians.
Obtaining reports from two or three of those medical professionals would
undoubtedly have cost several thousand dollars.

[55]        
I allow the Meridian Rehabilitation Consulting report as presented at
$4,050.00, plus applicable taxes.

[56]        
In objecting to the cost of future care report, defendant’s counsel
makes the following submissions:

10.       Plaintiff
is also seeking $303.75 for a cost of future care report. Ms. Dewhirst charged
2.25 hours for what is essentially a one page report. Ms. Dewhirst recommended
that the Plaintiff see a hand therapist. She obtained two cost estimates.

11.       There
is no evidence from counsel to justify whey it was necessary or proper to
obtain a report from Ms. Dewhirst, as opposed to attaching quotes to a Notice
to Admit.

12.       Lydia Phillips of Meridian
Rehabilitation Consulting provided a letter purporting to justify the charge,
but it is not clear whether Ms. Phillips is specifically referring to this cost
of future care report or just the company’s practices in general. It is not
clear how 10 to 15 minutes of editing would have been required on what is
essentially a one page report.

[57]        
In response to this, plaintiff’s counsel referred me to para. 37 of
Master Young’s decision in Arnason, where she writes:

[37]      After determining what
assistance the plaintiff might need in the future to maintain a quality of life
that resembled that which he would have led if he had not been injured, Ms.
Kennedy provided evidence of the cost of providing that assistance. Counsel for
the defendant says that this information is readily available within the public
domain and could have been looked up by a junior legal assistant and
incorporated into a notice to admit. Although cost effective, this method of
leading this evidence would expose the plaintiff to the defendant’s challenge
that the unqualified person did not have the expertise to determine what type
of assistance was required. This was a risk that the plaintiff’s counsel was
not prepared to take in preparing for trial.

[58]        
I need to keep in mind that the cost of future care report was ordered
at the same time as the functional capacity evaluation, intended to be done in
concert with that functional capacity evaluation. The report is a one-page
report. It references the functional capacity evaluation conducted on January
14 and 15, 2014. The functional capacity evaluation report made cost of care
recommendations of therapies to assist the plaintiff to reach a functional
state as close as reasonably possible to his pre-injury state. The cost of care
recommendations were based on the functional capacity evaluation which
recommended assessment by a hand therapist (an occupational therapist or
physiotherapist with the certification or experience in hand therapy). Two cost
estimates were obtained; the total average cost for the assessment and sessions
was estimated to be $675.00. The report was billed at $303.75. As with the
functional capacity evaluation itself, I find that the commission of a cost of
future care report was reasonable and proper, and did not fall into the
category of extravagance. Again, counsel for the plaintiff had a duty to ensure
that all areas of the plaintiff’s claim were supported with reliable evidence.
The report may well have assisted the defendant in settling the case, given
that its recommendations for cost of future care were modest. Those
recommendations would not be known in advance.

[59]        
While I agree with the submission of counsel for the defendant that the
justification letter lacks clarity, I again look at proportionality and the
fact that these are the only expert reports obtained.

[60]        
Accordingly, the cost of future care award is proper. The amount charged
is reasonable in consideration of all of the circumstances, and the
disbursement for the report is allowed in full.

[61]        
In summary, taxable disbursements are allowed at $6,250.93, a reduction
of $110.70, plus G.S.T. of $312.55, plus non-taxable disbursements of $480.00,
for a total of $7,043.48, plus interest.

[62]        
Counsel have advised that interest on allowed disbursements at six
percent will be added. If there is any difficulty in agreeing on this, counsel
should arrange for further submissions. Ms. Ginter may attend by telephone.

[63]        
As the plaintiff has been largely successful, he should have his costs,
which I summarily assess at $400.00, all inclusive, based on 3 units or
$330.00, plus taxes and estimated disbursements.

“Master R.W.
McDiarmid”

MASTER McDIARMID