IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Chow v. Slawter, |
| 2015 BCSC 929 |
Date: 20150602
Docket: M125057
Registry:
Vancouver
Between:
Cindy Sue Ling
Chow
Plaintiff
And
Colin Slawter, the
Bank of Nova Scotia Trust Company
Comwest Cartage
Corp. and Nick W. Johansson
Defendants
Before:
District Registrar Nielsen
Reasons for Decision
Counsel for the Plaintiff: | L.E. Kancs |
Counsel for the Defendants: | E. Lyszkiewicz |
Place and Date of Hearing: | Vancouver, B.C. May 8, 2015 |
Place and Date of Decision: | Vancouver, B.C. June 2, 2015 |
introduction
[1]
On April 14, 2015, the plaintiff settled her motor vehicle accident
claim for $115,492.03 in damages, plus taxable costs and disbursements. Taxable
costs and disbursements were to be agreed, or assessed. As an agreement could
not be reached, this is the formal assessment.
[2]
At issue are tariff items 2 and 18 and also the accounts of Dr. David
Unger, family physician, the radiological reports of Dr. Martin and Dr. Clement,
and the cost of the MRIs.
background
[3]
On September 7, 2010, the plaintiff was involved in a rear-end motor
vehicle accident. The notice of civil claim was filed on August 20, 2012.
Liability was admitted. At the time of the collision, the plaintiff was driving
her 1989 Nissan which was rear-ended by a 2008 Sterling flatbed truck. The
impact drove the plaintiffs vehicle into the vehicle immediately in front of
her. The collision was described as significant.
[4]
As a result of the collision, the plaintiff suffered from chronic pain,
anxiety, and depression. She was also diagnosed with some behavioural and
cognitive dysfunction.
[5]
The plaintiffs damage claims consisted of non-pecuniary damages, past
income loss, loss of future earning capacity, cost of future care, and special
damages.
[6]
At the time of the motor vehicle accident the plaintiff worked for
CapCom Vancouver Game Studios Inc. She was dismissed from her employment following
the motor vehicle accident and she alleges this was due to the injuries she
suffered in the accident.
[7]
The plaintiff then worked for two other software/gaming companies before
moving to New York City with her boyfriend on September 4, 2013.
[8]
The trial of the action was scheduled to proceed by judge and jury on
February 16, 2015, for eight days. The 84-day time limit for serving expert
reports was November 24, 2014.
[9]
Formal offers to settle the action were exchanged by the parties and on
February 14, 2015, at 7:47 a.m., settlement was reached for $115,492.03 in
damages, plus taxable costs and disbursements. The settlement was global in
nature. This was significant in the defendants view, as they allege the
damages paid in settlement encompassed several of the disbursements in dispute.
Tariff Items
[10]
The Registrar is to allow tariff fees with respect to work that was
proper or reasonably necessary to the proceeding, and is to consider Supreme
Court Civil Rule 1-3, which encompasses the objects of the Rules.
[11]
In fixing the number of units for items where there is a minimum and
maximum number of units allowed, the Registrar is to allow the minimum number
of units for matters upon which little time should ordinarily have been spent,
and the maximum number of units for matters upon which a great deal of time
should ordinarily have been spent.
[12]
When fixing the amount of units, the Registrar must put the matter in
perspective and compare the case to all other cases that come before the courts,
and decide where it fits within the spectrum. Consideration must be had of the
particular circumstances of the proceeding in which costs are claimed when
deciding how many units to award within the prescribed range.
Tariff Item 2
[13]
Counsel for the plaintiff attests that he opened five separate
correspondence files involving medical matters, wage loss, pleadings,
investigations, special damages, and an examination binder, all of which filled
three bankers boxes. Recorded time invested in the file was roughly 236.3
hours up to the point of settlement.
[14]
Plaintiffs counsel received and reviewed 758 pages of social media documents
relating to the plaintiff, which involved considerable discussions and
investigations.
[15]
The defendants on the other hand emphasize that the case involved a
situation where liability was admitted. All document exchanges took place
without the need for any applications, and the case did not involve anything
unusual or particularly difficult.
[16]
The plaintiff claims 15 units and the defendants submit 10 units would
be appropriate. Considering all the evidence and factors arising, 13 units are
awarded for tariff item 2.
Tariff Item 18
[17]
The plaintiff subpoenaed three witnesses and interviewed a further two
witnesses. The defendants submit that the witnesses consisted of the
plaintiffs common law spouse and two friends, all of whom would be cooperative
and readily available.
[18]
The plaintiff claims 3 units and the defendants submit 2 units are
appropriate in the circumstances.
[19]
I agree with defence counsel that the difficulty surrounding tariff item
18 in this case would be minimal. Two units are awarded.
Disbursements
[20]
The applicable principles to be applied with respect to disbursements
are summarized at para. 5 of Turner v. Whittaker, 2013 BCSC 712, as
follows:
[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 Dael v. Van Dael, 56 B.C.L.R. 176 (SC) revd 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)
[21]
These principles will be applied to the following disbursements which
remain in dispute.
The accounts of Dr. David Unger, family physician
[22]
Three accounts of Dr. Unger remain in dispute. The first account,
in the amount of $473, is for two medical letters. The first letter, dated
December 7, 2012, is three pages in length and provides a recommendation and
reasons in support of an expedited MRI of the plaintiff. The second letter,
also dated December 7, 2012, is seven pages in length and provides a
recommendation for psychological services for the plaintiff.
[23]
The two letters were billed according to the BC Medical Association
Guide to Fees (BCMA Fees Guide) dated December 5, 2012 and Revised Guidelines
for Medical Legal Fees effective April 1, 2013. The letter regarding the MRI
was billed at $150 and in accordance with Code A00070, and the letter regarding
psychological services was billed at $320 in accordance with Code A00071, for a
total of $473.
[24]
Dr. Unger wrote a third letter regarding neurological treatment for
which he did not bill.
[25]
The defendants agree that this disbursement is proper and necessary. However,
they take issue with the amount and submit the account ought to be reduced to
$157.67 based upon their interpretation of the BCMA fees guide.
[26]
I find that the account for $473 is entirely reasonable and in keeping
with the BCMA Fees Guide. The $473 disbursement is allowed in full.
[27]
The second account of Dr. Unger with which the defendants take
issue is the cost of his medical-legal report in the amount of $2,029.80.
[28]
The defendants agree the report was proper and necessary. However, they
submit that the BCMA Fee Guide Code No. 00073 should be applied to allow
for a fee of $1,602 for the report billed by Dr. Unger.
[29]
In his invoice of September 1, 2014, Dr. Unger itemized the charges
that comprise his bill of $2,029.80. Dr. Unger charged the sum of $1,659
under BCMA Fee Guide Code No. 00073 and, in addition, he billed $370.80,
representing just over an hour to review the extensive documents that
accompanied the request for the medical legal report. This was billed under BCMA
Fees Guide Code No. A00095.
[30]
It should be kept in mind that the BCMA Fees Guide is only a guide. A
higher amount may be allowed in any particular case where warranted. The
charges of Dr. Unger, in the present circumstances, are reasonable and in
keeping with the BCMA Fees Guide. The account in the amount of $2,029.80 is allowed
in full.
[31]
The final account of Dr. Unger in issue is his cancellation fee for
attendance at trial in the amount of $1,990.
[32]
Dr. Unger had been scheduled to give his evidence at trial
commencing at 2:00 p.m. on February 18, 2015, and continuing into February 19,
2015. Dr. Unger had booked off both these days to allow for his testimony.
[33]
The trial settled on Saturday, February 14, 2015, two days prior to the
trial commencing on Monday, February 16, 2015.
[34]
Dr. Unger was not able to rebook the afternoon of February 18 and
the 19, 2015, and therefore billed $1,990 pursuant to BCMA Fees Guide Code No. A00092.
[35]
Dr. Ungers affidavit in the within proceeding describes the nature
of his practice. It is not a traditional family practice in the sense that he
has an office where he books patients during normal business hours. Rather, his
practice consists of primarily out-patient work with persons needing HIV care,
and persons in the midst of ICBC claims following motor vehicle accidents. This
aspect of his practice requires advance bookings, which are not easily filled
on short notice.
[36]
Dr. Unger also works as an ethicist. He is the Director of Ethics
at Providence HealthCare and is the ethicist on the Providence HealthCare
Research Ethics Board. Dr. Unger is also the ethicist for the BC Centre of
Disease Control. This aspect of Dr. Ungers practice cannot be filled on
short notice and has the added complication of being done in teams and groups.
This presents unique booking difficulties.
[37]
Dr. Ungers affidavit attests that when he was advised by counsel
for the plaintiff that the trial had been settled, he was simply unable to book
work in his ethics practice, or patients in his clinical practice, to fill the
time he had booked off for his court attendance.
[38]
The defendants take issue with Dr. Ungers cancellation fee and
rely upon Prevette v. Cusano, 2001 BCSC 1104, wherein the Court states
at paras. 49 and 50:
[49]
For that reason
before awarding fees for time lost because of a short cancellation of a trial,
the taxing officer should satisfy himself that there was in fact a loss
suffered by the doctor which justifies him in rendering a fee payable by the
defendant. Such a loss is more likely to be suffered by a less expert doctor
than a specialist, since the neophyte is less likely to have other patients
knocking at his door readily available to be attended to.
[50] I agree with (and am
bound by) the reasoning of Hutchison, J. While I recognize that experts are
expensive and their time may be difficult to fill, in my opinion, these charges
are not allowable. No evidence was before me that the experts were unable to
fill their days with remunerative work. I would therefore disallow the fees
charged for cancellation.
[39]
In my view, the evidence of Dr. Unger is sufficient to prove that
he was not able to fill the cancelled court time with remunerative work. This
isnt surprising given the late cancellation notice, and the nature of his
practise which presented unique difficulties in this regard. Dr. Ungers
cancellation fee in the amount of $1,990 is allowed in full.
Radiological reports of Dr. Martin and Dr. Clement
[40]
Plaintiffs counsel obtained three MRIs of the plaintiff. The first was
an MRI of the plaintiffs neck and low back; the second was an MRI of the
plaintiffs right hip; and the third was an MRA (arthrogram) of the plaintiffs
right hip, which involved a prior injection to the hip area.
[41]
The plaintiff intended to introduce reports from Dr. Martin and Dr. Clement,
both radiologists, who provided the two MRIs. In order to ensure compliance
with Supreme Court Civil Rules 11-2 and 11-6, plaintiffs counsel requested the
MRIs be put into an expert report format. The cost of each report was $200, for
a total disbursement of $400.
[42]
Plaintiffs counsel was concerned about any objections that the
defendants might make regarding the introduction of the MRIs on the basis that
they contained opinions and that the MRI reports themselves did not conform
with the rules regarding expert opinion.
[43]
The defendants take issue with this disbursement on the basis that the
plaintiff should have simply sought the appropriate admissions regarding their
use at trial. Ironically, counsel for the plaintiff did precisely that but the
request for the admission was refused.
[44]
Counsel for the plaintiff had forgotten to include the reports of Dr. Martin
and Dr. Clement in his trial book, although he had intended to do so. The
Defendants were therefore unaware that the MRIs had been put into a medical
legal report format.
[45]
On February 12, 2015, an admission was sought by the plaintiff with
respect to the two MRIs. The defendants, still unaware that the MRIs had been
put into a medical legal report format, advised that same day, that they
objected to the MRIs being exhibits at trial.
[46]
The MRIs being in the proper format ensured an arguable basis for their
admissibility in the face of the defendants objection. With the benefit of
hindsight, the approach of plaintiffs counsel proved wise.
[47]
Seeking and obtaining admissions with respect to documentary evidence is
entirely appropriate. However, the plaintiff has the onus of proof. If a
certain piece of evidence is critical to the plaintiffs case, counsel for the
plaintiff has the obligation to take the appropriate steps to ensure its
admissibility at trial. Doing so is both proper and necessary.
[48]
The $400 disbursement cost for the reports of Dr. Martin and Dr. Clement
is allowed in full.
The MRIs
[49]
The most contentious disbursements are those related to the MRIs dated
January 5, 2013, at a cost of $1,990; the MRI of July 21, 2014, at a cost of
$995; the MRA (arthrogram) of September 17, 2014, at a cost of $995; and,
finally, the CMI injection fee of September 17, 2014, at a cost of $425.
[50]
The MRIs in question were recommended by the plaintiffs physician and
commented upon within the litigation by both the plaintiffs and defendants
medical experts. The MRIs had the dual purpose of both the treatment of the
plaintiff and as an aid to plaintiffs counsel in assessing and quantifying the
claim for damages.
[51]
In Jalili v. Ma, 2013 BCSC 1420, Registrar Cameron commented upon
the dual purpose of an MRI and that it can be properly recovered within the
litigation as a disbursement. At para. 6, Registrar Cameron stated:
[6] I am satisfied on the
evidence before me that the MRI served two purposes. It assisted Dr. Parhar in
determining what was an appropriate treatment plan going forward for the
Plaintiff and it also served as an aid to Mr. Kancs in advising her on the
nature and extent of her disability and what compensation she might expect to
be entitled to. It is noteworthy that Dr. Parhar involved counsel in arranging
for an MRI. The fact that both physician and counsel worked together in
arranging for the MRI further satisfies me that in this case there was a dual
purpose. I am satisfied that the MRI cost is properly sought to be recovered as
a disbursement.
[52]
The defendants do not take issue with the purpose for which the MRIs
were obtained, the necessity of having MRI scans, or whether it was reasonable
that the MRI scans were paid for privately, instead of obtaining them through
the publicly-funded system. Nor do the defendants allege the amount charged for
the MRIs was unreasonable. Rather, the defendants object to the MRIs claimed as
a disbursement on the basis that they were put forward originally by the
plaintiff as part of their claim for special damages in negotiations which
ultimately led to settlement.
[53]
The plaintiff submits that within the litigation, a formal notice to
admit dated January 21, 2015, was served upon the defendants requesting the
admission that the MRIs were special damages but the defendants, in their reply
dated January 27, 2015, denied the admission of all special damages, including
the cost of the MRIs.
[54]
However, this process within the litigation was superseded by the
subsequent negotiations which ultimately led to settlement of the legal action
on a global basis.
[55]
The defendants submit that the negotiations which led to settlement, on
a global basis, resolved the issue of special damages in its entirety. The
special damages claims advanced by the plaintiff, and settled, encompassed the
claim for the cost of the MRIs.
[56]
The affidavit of the defendants in support of their position states at paras. 10
through 14 as follows:
10. Commencing in January 2015 and continuing until
Saturday, February 14, 2015 settlement negotiations took place between the
parties. Mr. Kancs negotiated on behalf of the Plaintiff and Mr. Foster
on behalf of the Defendants. I am advised by Mr. Forster, and verily
believe it to be true, that at all time during settlement negotiations with Mr. Kancs,
he was aware of and was taking into consideration the Plaintiffs List of
Special Damages when he made his offers.
11. I am further advised by Mr. Foster that at all
times the settlement discussions between he and Mr. Kancs were for the
settlement of all claims of the Plaintiff arising from the Accident, including
her claim for special damages.
12. I am further advised by Mr. Foster that the
settlement discussions were undertaken by both he and Mr. Kancs on a
global basis and that neither of them of them broke down any offer into any
specific head of damage. Mr. Forster further advises that all of his
offers included settlement of the plaintiffs claims for special damages and
that he understood all of the Plaintiffs offers included settlement of the
claims for special damages.
13. I am further advised by Mr. Foster that
settlement of this matter for the sum of $115,000.00, new money, included
settlement of the Plaintiffs special damages.
14. I am further advised
by Mr. Foster that at no time during his settlement discussions with Mr. Kancs
did the Plaintiff withdraw or remove the cost of the MRIs as a special damage.
[57]
A similar issue arose in Mah v. Tugade, 2006 BCSC 1293, where the
plaintiff sought to claim, as a disbursement, MRI costs which had been advanced
previously as a special damage during the course of settlement discussions
which resulted in the resolution of the legal action. Registrar Blok, as he
then was, rejected the subsequent claim for the MRI as a disbursement, stating
at paras. 6-8:
[6] I should say that the claims representative
attested to that fact that she relied on the list of special damages that had
been supplied in considering the reasonableness of the offer and making the
decision to accept it.
[7] It is true that in the many party and party bills
that are seen and assessed through the registrars office that certain items do
have the quality, depending on the circumstances, of either special damages or
costs. Indeed, just earlier this week I had an analogous situation involving a
vocational counsellor and a variety of vocational counselling services, and I
concluded that those services had the quality of both about them, and thus an
apportionment had to be made as between the two aspects.
[8] Where, in particular,
a disbursement may be characterized one way or the other, an election by a
party as to how it is to be claimed, in my view, affects whether or not it can
be later claimed as part of costs. I find here that there was an election by
the plaintiff as to how it was to be claimed and that the plaintiff cannot both
characterize something as special damages and also characterize it as costs. It
is one or the other. In this type of disbursement it could be one or the other.
An election was made, and thus I conclude that it would be incorrect to allow
it as an item of costs. Whether that amounts to an estoppel or not, I prefer
not to say. I am simply content to conclude that it would be incorrect not to
give effect to the election that was made.
[58]
In the present case, the plaintiff pressed the MRI costs as a special
damage during settlement negotiations. Those negotiations resulted in a
resolution of the legal action, for a global amount, which included special damages.
In the circumstances, an election was made and relied upon in coming to a
settlement. As a result, I decline to award the MRI costs as a disbursement.
_____ Registrar Nielsen_____
District
Registrar Nielsen