IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Sturdy v. Dhadda, |
| 2016 BCSC 505 |
Date: 20160301
Docket: M130812
Registry:
Vancouver
Between:
Robyn Lenna Sturdy
Plaintiff
And
Mann S. Dhadda, V
K Delivery & Moving Services Ltd.
and Gold Key Sales and Lease Ltd.
Defendants
Before:
District Registrar Nielsen
Oral Reasons for Decision
In
Chambers
Counsel for the Plaintiff: | N.W. Peterson |
Counsel for the Defendants: | H.D. Neumann |
Place and Date of Hearing: | Vancouver, B.C. March 1, 2016 |
Place and Date of Decision: | Vancouver, B.C. March 1, 2016 |
[1]
THE
COURT: These are oral reasons for decision. In the event a
transcript is requested, I reserve the right to edit them. The result will not
change.
[2]
This matter involves an application by the plaintiff for an order that
the defendants, within three days, produce the following documents:
a. all invoices received from and/or paid to Dr. Lewis
Pullmer, psychiatrist, in relation to his fees associated with his assessment
of Ms. Sturdy, consultations, cancellation fees, and provision of his
medical legal opinion/report in respect of this action;
b. all invoices received from and/or paid to Dr. Martin
Grypma, orthopedic specialist, in relation to his fees associated with his
assessment of Ms. Sturdy, consultations, cancellation fees, and provision of
his medical legal opinion/report in respect of this action;
c. all invoices
received from and/or paid to Dr. Rehan Dost, neurologist, in relation to
his fees associated with his assessment of Ms. Sturdy, consultations,
cancellation fees, and provision of his medical legal opinion/report in respect
of this action;
[3]
An assessment of the plaintiff’s costs is scheduled for March 8, 2016. The
defendants have given notice that at the assessment, the reasonableness of the
charges of the plaintiff’s neurologist, Dr. Rathbone, the plaintiff’s
psychiatrist, Dr. Anderson, and the plaintiff’s physiatrist, Dr. Adrian,
will be challenged pursuant to Supreme Court Civil Rule 14-1(5).
[4]
The plaintiff submits that, as the defendants are challenging the
reasonableness of their expert charges, the defendants ought to provide details
of the costs they incurred for the same or similar experts. The plaintiff
relies on Supreme Court Civil Rules 1-3, 7-1, 11-6(8)(b), 13-1(19), 14-1, and
18-1(5)(c).
[5]
The defendants oppose the application on the following basis: the onus
is on the plaintiff to justify her bill, and the production of invoices from
the defendants experts will not discharge the onus to justify the
reasonableness of the fees charged by the plaintiff’s experts; the production
of the invoices from the defendants’ experts potentially offends and becomes an
intrusive invasion of the defendants’ solicitor-client relationship with
respect to privilege; and finally, the release of the information relating to
the defendants’ costs for experts is not relevant to the issue of the
plaintiff’s incurred costs.
Background
[6]
The action involves a motor vehicle accident that occurred on April 21,
2011, when the plaintiffs vehicle was T-boned by a delivery truck owned and
operated by the defendants. Liability was admitted.
[7]
As a result of the collision, the plaintiff alleged she suffered a mild
traumatic brain injury, post-traumatic stress disorder, and soft tissue
injuries. The civil action and the associated Part 7 benefits action settled on
September 25, 2015, for $300,000 plus taxable costs and disbursements. The
trial was to commence on October 5, 2015.
[8]
The assessment regarding the plaintiff’s bill of costs is scheduled for
one full day on March 8, 2016. The plaintiff retained, among others, the
following experts: Dr. Rathbone, neurologist; Dr. Anderson,
psychiatrist; and Dr. Adrian, physiatrist. The defendants retained: Dr. Rehan
Dost, neurologist; Dr. Pullmer, psychiatrist; and Dr. Grypma,
orthopedic surgeon. All these experts had their reports served in accordance
with the Supreme Court Civil Rules on the respective parties.
[9]
Both the plaintiffs and defendants experts provided their services
through medical corporations which offer independent medical assessments. Fees
charged to the plaintiff by those companies are also at issue on the
assessment.
Analysis
Relevance
[10]
The purpose of the plaintiffs application is to compare and contrast
the fees charged by the plaintiffs experts, with the fees charged by the Defendants
experts in the exact same or similar specialities.
[11]
A registrar may order production of documents in advance of an
assessment pursuant to Supreme Court Civil Rule 18-1(5)(c) which provides:
(5) A master, registrar or special referee may hold a hearing
in relation to an inquiry, assessment or accounting and, in that event, may
. . .
(c) administer oaths, take evidence, direct production of
documents and give general directions for the conduct of the hearing.
[12]
In my view, the information sought by the plaintiff is relevant. Registrars
often compare the charges of a particular expert within the same or similar
speciality. The information sought by the plaintiff would involve the same or
similar specialities within the same litigation concerning the same plaintiff,
based upon the same clinical history.
[13]
While not determinative, what another like expert charged, in identical
circumstances, would be a relevant consideration within the assessment pursuant
to Supreme Court Civil Rule 14-1(5).
[14]
There are a number of cases cited which have referenced comparisons of
the charges of same or similar experts. In Harvey v. Tooshley, 2014 BCSC
433, the Court stated at para. 37:
[37] Experts charges may be reduced or disallowed for a
variety of reasons. Those reasons, first articulated in Bell v. Fantini
(1981), 32 B.C.L.R. 322 (S.C.) at paras. 32 and 34, and later paraphrased by
the court in Leverman v. Prince George (City), 2000 BCSC 697, include:
–
when the work duplicates the work already done by two similar
experts;
–
when the cost is unreasonable, compared to evidence of the cost
of other similar experts;
–
when a report includes, improperly, extensive narrative;
–
when the suggested damages reported by the expert are
"preposterous" in the view of the court.
[15]
In Luce v. Brar, 2014 BCSC 1612, the Court stated that it would
have been helpful to compare and contrast fees of like experts within the
litigation in the circumstances, where the reasonableness of the fees charged
by the expert was challenged, and the Court stated at paras. 53 and 54:
[53] Defence counsel further emphasizes that when
compared to other experts retained in the case, such as Dr. Reebye, Dr. Kostamo
is charging roughly $300 an hour more than other experts of similar vintage
[54] In order to assess
whether the expert fees charged were clearly an overcharge or unreasonable as
per Dosanjh, supra, at para. 50, there would need to be evidence of
comparisons to like specialties. In the present case, the defendants retained
an orthopedic surgeon, Dr. Grypma, but have not advised what he charged per
hour. In my view, that evidence would have been helpful to compare and contrast
fees
[16]
In Salsman v. Planes, 2014 BCSC 1726, the Court was hearing an
appeal of a Registrars decision and stated at paras. 38 and 39:
[38] Turning to the issue of what four other local
experts might have charged for similar reports, I am of the view it was
reasonable and appropriate for the Registrar to consider this information as a
factor in determining whether the cost of the reports, beyond the
administrative costs Dr. Corney included in his invoice, was reasonable. On
this point, I appreciate counsel for the plaintiff on the appeal made
submissions as to the differences between Dr. Corneys practice and the
different practices of the other doctors and whether or not some of these other
experts would deal with all of the matters at issue in this litigation.
[39] However, given the
totality of the circumstances, I agree with the defendant that this evidence
of the going rate or market rate was an appropriate factor for the
experienced Registrar to consider in assessing the reasonableness of Dr.
Corneys charges. I am not satisfied this information overwhelmed her
assessment but rather was only one factor the Registrar considered. In my view,
she was entitled to do so.
[17]
In Filippelli v. Rooney (30 October 2015), Vancouver Registry
M126237 (B.C.S.C.) (unreported), the Registrar relied upon what the defendant
had paid their expert to assess the reasonableness of the plaintiffs expert
charges. At para. 21, the Court stated:
The real issue is its value
and how that would reflect on the reasonableness of the fee charged. In this
regard, I am in agreement with defence counsel. The comparison defence counsel
made to the report of Dr. Gallagher [the defence vocational expert] is apt,
although I do agree with plaintiff’s counsel that the forum for determining
which report was best overall would be cross-examination at trial. However, in
terms of the reasonableness of the costs of a report of that nature, covering
the same plaintiff, in the same situation, based upon the same records, an
appropriate comparison is provided by Dr. Gallagher. She charged $2,500 for her
report.
[18]
What these cases demonstrate is that a comparison of the same or like
expert within the same litigation is relevant. By allowing the party who
challenges the reasonableness of the assessments charged by the assessing
party’s experts to cherry pick what accounts they will or will not disclose
leads to selective and inconsistent disclosure. If disclosure suggests the
other partys accounts are too high, they are readily disclosed for that
purpose. On the other hand, if they do not, those records, for strategic
reasons, are simply not produced. In my view, this leads to an imbalance which
requires the levelling of the playing field.
[19]
The production of the expert fee invoices of the defendant’s experts was
recently ordered in Filippelli v. Rooney (15 October 2015), Vancouver
Registry M126237 (B.C.S.C.) (unreported), by Master Taylor. In that case, the
defendant challenged the amounts charged by the experts retained by the
plaintiff. Prior to the main assessment, the plaintiff sought production of the
defendant’s experts’ invoices. The defendants consented to the production of
their engineer and vocational consultants’ invoices, but opposed the production
of their economist’s and neurosurgeon’s invoices. Master Taylor framed the
issue at para. 7 of his reasons, stating:
These are sought to assist the
plaintiff in determining and showing the registrar at taxation whether the
plaintiff’s economist invoice from Mr. Carson and the vascular surgeon, Dr. Salvian,
are within the range and reasonable.
[20]
The defendants suggested their neurosurgeons invoice was not applicable
or comparable to a vascular surgeon as retained by the plaintiff.
[21]
In ordering production of the invoice of the neurosurgeon retained by
the defendant to compare to the vascular surgeon retained by the plaintiff, Master
Taylor stated at para. 9, in part:
It is only one of many
factors, I think, that the registrar would take into account in assessing
whether or not the invoice of Dr. Salvian [the plaintiff’s expert] is
reasonable in the circumstances. Accordingly, I allow that application.
[22]
In Filippelli, supra, Master Taylor relied upon the reasons of
Mr. Justice MacKenzie in Salsman v. Planes, supra, at paras. 38
and 39, quoted above.
[23]
The information sought by the plaintiff is clearly relevant to the
assessment and ought to be disclosed in the circumstances of this case, subject
to any claim of privilege or other applicable exception.
Litigation privilege
[24]
The defendants have claimed that ordering production of their experts’
invoices would potentially offend the defendants’ privilege. They rely on Galvon
v. Hopkins, 2011 BCSC 1835, in this regard.
[25]
In the present case, the experts whose invoices are sought to be
produced had their reports disclosed and served upon the plaintiff in
compliance with the Supreme Court Civil Rules, so those reports could be
used at trial. When the reports were served, the die was cast and privilege was
waived. To the extent that litigation privilege applied prior to the
defendants’ decision to serve their reports that privilege no longer exists. This
point is made in Galvon, supra, at paras. 14 and 15, where
the Court stated:
[14] In Teck Cominco Metals Ltd. v. Shanghai Boiler
Works Co., 2010 BCCA 51, the Court of Appeal again confirmed the rule in Hodgkinson
v. Simms. Justice Hall stated that the conclusions and opinions of an
expert conveyed to counsel are privileged, unless and until counsel seeks to
rely at trial upon such conclusions and opinions, in which case notice must be
given under the appropriate rule.
[15] As Justice Hall said at para. 15 of that case:
That is a decision for counsel to make in due course.
[26]
In First Majestic Silver Corporation v. Santos, 2012 BCSC 1250,
the Court ordered the production of an expert’s time records during the course
of the trial. In making the order for production, the Court considered the
issue of litigation privilege and stated at paras. 5-7:
[5] The previous court rules did not deal with the
production of an expert’s file. Rather, judicial decisions set out the law. The
leading case is Vancouver Community College v. Phillips, Barrett, 20
B.C.L.R. (2d) 289; [1987] B.C.J. No. 3149. Finch J., as he then was, set out
the following principles:
34 I will attempt to summarize my view of the law.
When an expert witness who is not a party is called to testify, or when his
report is placed in evidence, he may be required to produce to counsel
cross-examining all documents in his possession which are or may be relevant to
matters of substance in his evidence or to his credibility, unless it would be
unfair or inconsistent to require such production. Fairness and consistency
must be judged in the circumstances of each case. If those requirements are
met, the documents are producible because there is an implied intention in the
party presenting the witness’s evidence, written or oral, to waive the lawyer’s
brief privilege which previously protected the documents from disclosure.
[6] Finch J., at para. 29, drew a distinction between
the role of an expert in providing his opinion to the court and acting as an
adviser to counsel:
. . . As well, in the litigation in which the
witness is called to testify, he may remain a confidential advisor to the party
who retained him in, at least, one respect. He may be asked or may have been
asked to give advice on how to cross-examine the other side’s witnesses. In
putting forward his own opinion, he need not necessarily attack the opinions of
experts opposite. Counsel may wish to save that sort of ammunition until after
the adverse expert has been called. It would not be fair to require the witness
to disclose documents relating only to the cross-examination of such adverse
experts because it would give the other side an advantage not available to the
party calling evidence on a subject matter first.
[7] In the more recent decision of Lax Kw’alaams
Indian Band v. Canada (Attorney General), 2007 BCSC 909, Satanove J. dealt
with the dual role of an expert giving evidence at trial and providing advice
to counsel for the purposes of cross-examining the opponent’s experts. She
stated:
15 I do not think that the statements by Finch J., as
he then was, in Vancouver Community College v. Phillips, Barratt
regarding exceptions to the waiver of litigation privilege can be taken as
blanket exceptions which will apply in all cases regardless of the
circumstances. He was citing examples where exceptions may occur, but the
principle he was espousing was that the court must balance the competing
policies of disclosure versus privilege and determine what is fair in each
particular case.
[27]
I pause to note the last sentence of para. 7 which states there
will be circumstances where exceptions may have to be made in order to balance
the competing policies of disclosure versus privilege. The Court notes this
will be a case specific analysis.
[28]
In the circumstances of the present case, I find that privilege has been
waived and that fairness favours disclosure.
Disposition
[29]
The onus of proving the reasonableness of the plaintiffs experts
charges clearly rests upon the shoulders of the plaintiff who is the assessing
party. The accounts of the plaintiffs experts have been disclosed and
scrutinized by the defendants, following which the defendants have alleged
those charges are unreasonable within the context of Supreme Court Civil Rule
14-1(5).
[30]
In these circumstances, where the defendants have served their expert reports
upon the plaintiff, the amounts paid by the defendants to their experts in the
same specialities, involving the same patient, with the same clinical history,
will be relevant. While a comparison of fees and charges would not be
determinative and is only a single factor in the analysis, it is a matter
properly considered in the context of this case, where the defendants are
directly challenging the reasonableness of the plaintiff’s experts accounts.
[31]
The plaintiffs application is allowed with respect to Dr. Pullmer
and Dr. Dost. The plaintiff’s application with respect to Dr. Grypma
is dismissed. I am not satisfied that the evidence before me provides a
sufficient basis to establish the relevance of the invoices of Dr. Grypma,
orthopedic surgeon, to those of Dr. Adrian, physiatrist.
[32]
Since the plaintiff has been substantially successful, they are entitled
to the costs of their application.
District
Registrar Nielsen