2005 BCSC 84 McKenna v. Anderson

Before: District Registrar Bouck

Reasons for Decision

Counsel for the Plaintiff	Robert W. Cameron
Counsel for the Defendant	Harold F. Turnham
Date and Place of Hearing:	January 11^th, 2005 (½ day)
	Victoria, B.C.

[1] This is an assessment of the plaintiff’s bill of costs in a personal injury action settled well in advance of trial.

[2] The defendant takes exception to the units claimed under the various tariff items as well as the following disbursements:

· Photocopies

· Fax charges

· Dr. McLean:

o Feb 18/03 - clinical records $138.00

o Mar 26/04 - clinical records $162.40

o Mar 25/03 - consult with OT $115.00

o Oct.27/04 - clinical records $157.00

· Barbara Phillips:

o June 4/03 - assessment/case

management $212.50

o Apr 9/03 - assessment/case

Management $722.50

o Apr 15/03 - OT assessment report $595.00

[3] In support of this bill, the plaintiff relies on the affidavits of Amanda J. Purchase, Philip M. Williams and Barbara D. Phillips, all sworn January 5^th, 2005. The defendant did not file any affidavit material in reply. His objections are set out in a typewritten document provided by Mr. Turnham at this assessment.

[4] Despite the defendant’s criticism of the material, I found the plaintiff’s affidavits of justification to be helpful and of superior quality to those typically presented at registrar’s hearings.

[5] The plaintiff commenced this action in September 2004. He claims damages flowing from injuries sustained in a single vehicle collision which occurred on January 1^st, 2003. At the time of the accident, Mr. McKenna was a passenger in a vehicle driven by the defendant Anderson.

[6] It was subsequently alleged by Anderson that an unidentified driver was the cause of the accident. Hence, on December 16^th, 2004, the plaintiff was successful in adding ICBC and John Doe as defendants pursuant to s.24 of the Insurance (Motor Vehicle) Act.

[7] In the statement of claim, the plaintiff alleges various injuries including lacerations of the right side of his head; a concussion and related sequela; injuries to the cervical, thoracic and lumbar spine; and post-traumatic anxiety.

[8] Mr. Cameron was retained shortly after the accident. The defendant’s insurer, ICBC, took the position that the tort claim should be denied in its entirety.

[9] Regardless, no fault benefits were paid to the plaintiff, presumably on the basis of medical information from the plaintiff’s treating physician, Dr. McLean.

[10] As part of the investigation of his client’s claim, Mr. Cameron ordered Dr. McLean’s clinical records. Those records were ordered on three separate occasions, at least once at the request of ICBC. Mr. Turnham says that he received only one page of the records. Mr. Cameron was able to produce a more extensive compilation of records but had no specific record of whether that compilation had been delivered to defence counsel.

[11] One basis for requesting the clinical records was to investigate the plaintiff’s pre-accident medical history. Apparently, Mr. McKenna had been involved in several earlier motor vehicle accidents. Causation of the alleged injuries was very much in issue in this proceeding.

[12] At some point, plaintiff’s counsel retained Barbara Phillips of Ergo Rehabilitation Inc. to act as a rehabilitation consultant.

[13] Ms. Phillips prepared a written report on April 15^th, 2003 which was delivered to ICBC in or about May 2003. In that report, Ms. Phillips describes her qualifications as a physiotherapist and rehabilitation consultant:

“My role as a Rehabilitation Consultant is to assess and to treat my clients to maximize their function, independence and safety in areas of personal care, domestic management, and vocation and leisure activities. I will assess physical function and set up and monitor exercise rehabilitation programs and provide case management.”

[14] Ms. Phillips goes on to state that she will provide recommendations for medical services required to assist in the plaintiff’s recovery, a physical assessment of the plaintiff’s injuries and a functional assessment.

[15] Indeed, the report contains a lengthy recitation of the plaintiff’s relevant medical history, pre-accident profile, as well as physical findings. Ms. Phillips purports to make a finding of the plaintiff’s cognitive and emotional status:

“This short term memory loss could be attributed to the substantial head injury that he sustained.”

[16] Various recommendations are contained at page 10 of Ms. Phillips’ report. They include a referral to a physiatrist (already being made by Dr. McLean); physiotherapy treatments three times weekly (as recommended by Dr. McLean); a work hardening assessment, massage therapy, swim and gym admission and case management of four hours a month “to provide direction and support for the further investigation of his symptoms and his rehabilitation program”.

[17] Ms. Phillips provided a progress report on June 4^th, 2003. That report reviews both the subjective and objective functionality of the plaintiff. Her comments include the following:

“He continues to be very anxious about his lost income and lack of money to pay his bills. He dislikes being reliant on his family for his expenses at his age.”

[18] Further “treatment” recommendations include financial support for wage loss and living expenses.

[19] Ms. Phillips’ invoices are found at Exhibit “M” to the Purchase affidavit. The invoice of April 15^th, 2003 shows billing for an assessment, case management, interviews and travel. Ms. Phillips resides in Mill Bay and was required to travel to the Victoria area to conduct some of the interviews. Ms. Phillips charges $85 per hour for her services, except travel which is billed at half that rate, or $42.50 per hour.

[20] A second invoice of April 15^th, 2003 charges $595 for the documentation and preparation of a report.

[21] The final invoice dated June 4^th, 2003 charges $212.50 for services rendered between April 22^nd to June 4^th, 2003 for “reporting”.

[22] The plaintiff’s claim was eventually settled for the sum of $40,000 with costs to be assessed. Pursuant to the terms of settlement, the plaintiff is entitled to recover properly incurred disbursements which relate to a Part 7 claim.

TARIFF ITEMS

[23] In considering the appropriate number of units for each of the disputed items, I have regard to the principle that one unit is for matters upon which little time should have ordinarily have been spent and that the maximum number of units is for matters upon which a great deal of time should ordinarily have been spent.

[24] The assigning of units is a relational exercise in the context of similar cases involving the same subject matter and to civil litigation in general: Vincent v Foster [1992] B.C.J. No. 2494 (Q.L.).

Item 1: Investigations, Instructions

[25] Although the involvement of the unidentified driver added another element to this case, I do not believe that it overly complicated the investigation of the claim. The claim required an investigation typical to “standard” personal injury claims. In my view, 4 units are appropriate for this item.

Item 3: Pleadings

[26] The addition of ICBC and John Doe required an amendment to the statement of claim. However, in all other respects, the statement of claim is, to use the colloquial, “boilerplate”. Having said that, Appendix B does not contemplate a certain number of units for an “average” or typical personal injury pleading: Vincent v Foster, supra, at para 48.

[27] I allow the 3 units claimed.

Item 8: Process for discovery and inspection of documents

[28] The plaintiff produced one list which included thirty-one items under Part 1. Some of those items may be multiple pages. For example, the Medical Services Plan printout covers services for the period from January 1^st, 2001 to November 10^th, 2003. Although the number of pages of this document is not set out, one would expect there to be multiple pages. Similarly, records from the W.C.B. would likely include multiple pages. However, I have no indication that the documents as a whole were more than ordinarily voluminous.

[29] I allow 3 units for this item.

Items 16(a) & 17(b):

[30] The parties agree that 1 unit should be allowed for item 16(a) and 2 units for item 17(b)

Item 34:

[31] As a non-discretionary item, 5 units are allowed.

Total Number of Units: 18 units

Multiply by unit value: x $80.00 = $1,440.00

Plus GST ($1,440.00 x 7%) = $ 100.80

Plus PST ($1,440.00 x 7%) = $ 100.80

Total: $1,641.60

DISBURSEMENTS

[32] The assessment of disbursements is, of course, governed by Rule 57(4) which provides:

“(4) In addition to determining the fees that are to be allowed on an assessment under subrule (1) or (3), the registrar must

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

(b) allow a reasonable amount for those expenses and disbursements.”

[33] The defendant contests both the necessity and the reasonableness of various disbursements. Indeed, Mr. Turnham submits that even if I find the disbursement for Ms. Phillips’ services to be necessary or proper, the evidence does not adequately address the reasonableness of the amount charged.

[34] On this last point, I observe that in the absence of any evidence to the contrary, the reasonableness of a disbursement can be determined solely from the evidence of the invoices plus a solicitor’s affidavit of justification: Vincent v Foster (March 1^st, 1993), Victoria Registry No. 750/90 rev’g (in part) [1992] B.C.J. No 2494. In overruling that aspect of the Master’s decision, Melvin, J. states:

“In addition, the taxing officer may have regard to his own extensive experience in these matters. Garrow J.A. in Re Solicitors (1912), 7 D.L.R. 323 at p. 333 stated (in the context of taxing a solicitor's bill):

What the value of the services is, is a question of fact, to be determined, as in other cases, by proper evidence, which means, of course, here, the evidence of experts of experience, the Taxing Officer being, of course, at liberty freely to apply his own special knowledge and experience in addition.

See also Mohr v. Dent (supra) at p. 13:

The learned Master in his decision in Van Berkel v. Mitchell, Nanaimo Registry, ... said as follows:

Having regard to the eminent qualifications of Dr. Ibrahim, I would allow the plaintiff the maximum amount which for the foregoing reasons, I consider reasonable and justifiable within the meaning of the Rules. I accept the evidence of the defendants, combining it with my own experience as a taxing officer, and I allow the sum of $600.00 ...

Consequently, I am satisfied that the learned Master erred in deciding that he had no evidence before him upon which he could conclude that the disbursements that he was satisfied were necessarily or properly incurred were also reasonable.”

[35] Bearing these principles in mind, I now turn to the disbursements in dispute.

Photocopying:

[36] The plaintiff claims $146.40 (revised from original bill) as the cost of photocopying some 588 pages. While I appreciate that the plaintiff is not expected to count each page of photocopying to justify this expense, the volume of documents must be necessary or proper considering the nature of the proceeding.

[37] Even assuming that all of the plaintiff’s documents were copied and sent to defence counsel (or the insurer), I am unable to find that the copying of close to 600 pages was necessary in this proceeding. It may be that some of documents were photocopied to send to the client; that is not a disbursement to be borne by the defendant.

[38] This disbursement is allowed at the sum of $100.

Fax charges:

[39] The plaintiff claims the sum of $45. The objection to this charge came as a surprise to plaintiff’s counsel who was then required to make further investigations during this assessment. Mr. Cameron determined that facsimile pages were charged at the rate of $2 per facsimile.

[40] Again, I am not satisfied that this volume of faxes was required, nor that $2 is a reasonable amount for a facsimile transmission. Accordingly, I allow this disbursement at $15.

Dr. McLean, clinical records and consult with OT:

[41] I am satisfied with Mr. Cameron’s explanation as to the necessity of ordering Dr. McLean’s records on separate occasions. I am also satisfied that, using the B.C.M.A. tariff as the guideline, the amount charged by Dr. McLean for production of these records is reasonable. I would not discount these charges even if only some of the records were delivered to defence counsel. For reasons set out below, I am satisfied that Dr. McLean’s consultation fee is proper and reasonable. Accordingly, Dr. McLean’s fees are allowed in their entirety.

Barbara Phillips - Assessment/case management:

[42] Ms. Phillips’ charges were the most hotly contested in this assessment. The defendant submits that such a disbursement is neither necessary nor proper as Ms. Phillips is acting as de facto counsel in the proceeding. Indeed, she has usurped the role of both the treating general practitioner and counsel in directing treatment and making recommendations for the prosecution of the plaintiff’s claim. The use of such an expert may be convenient to counsel, but the cost should not be visited upon the defendant. In short, Ms. Phillips’ role in the proceeding is improper and redundant.

[43] Even if incurring this disbursement was necessary or proper, Mr. Turnham submits that the reasonableness of the hours or the hourly rate is not justified in the evidence.

[44] Similar objections to a disbursement were raised before Master Baker in Leverman v. Prince George (City) [2000] B.C.J. No. 892. In that case, the defence challenged the necessity of retaining an occupational therapist on the grounds that, among other things, there was no medical basis for the therapist’s analysis.

[45] In considering whether the disbursement should be allowed, Master Baker summarized the relevant legal principles:

“[19] I am assisted in the application of this subrule by several cases. In Bell v. Fantini(#2) (1981) 32 B.C.L.R. 322 the court, in dismissing an appeal from a registrar's findings, described several occasions in which the court is justified in refusing or reducing disbursements:

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 out of province legal counsel are consulted unnecessarily;
when out of province experts are utilized, if there are equivalent and adequate experts locally available;
when the expert is not made available for cross-examination;
when the expert's report is not made available to the opposing party;
when the contents of a report are significantly recanted on cross-examination;
when the suggested damages reported by the expert are "preposterous" in the view of the court.

[20] The fact that a report is not used at trial does not, in and of itself, preclude assessing the disbursement. The assessing officer is not to step into the shoes of the ultimate trier of fact, but rather is to focus "on whether, in the circumstances, it was a proper expenditure to fully and properly prepare the case for trial" (Morrissette v. Smith (1990) 39 C.P.C. (2d) 30). Similarly, in considering disbursements incurred in matters ultimately settled, with "...no evidence...that this report could be considered as useless at trial..." the disbursement will generally be permitted (Loopstra, Nixon, and McLeish v. Sopko (1992) O.J. No. 1875).

[21] Finally, there are instances in which the court can conclude that an expert has been retained prematurely. In Fung v. Berkun ((1982) 36 B.C.L.R. 352) for example, it was held that an accident reconstruction expert had been retained on behalf of the plaintiff, despite counsel having been advised of the evidence of a lay witness that would very likely qualify or affect the expert's views. At pp. 354 and 355 the court stated:

...where factual assumptions must be made before costly expert opinions can be obtained, the disbursement for that opinion must be premised on a thorough and reasonable attempt to ascertain the assumed facts in order to give efficacy to that report.

[22] It is important to remember that the defendant has led no evidence to challenge the cost of either the Kleeman or the Karp reports. I have no evidence to challenge either professional's hourly rate, nor to suggest that another occupational therapist or actuary could have performed equivalent analyses in less time, in less detail, or for less expense.

[23] I am satisfied, in the main, that the reports (in the case of Ms. Kleeman both the 1996 and the 1999 reports) were reasonable and necessary at the time commissioned. The defendant made it absolutely clear in 1995 that it was not prepared to negotiate without some basis for sums discussed; that basis, conventionally, would include the opinions of experts. Similarly, and given the various trial dates set in this matter, it was reasonable for counsel for Ms. Leverman to commission the enquiries and reports of Ms. Kleeman and Mr. Karp in preparation for trial.”

“[25] I do not accept defense counsel's submission that there was no medical basis for the enquiry made by Ms. Kleeman. It is possible that, at trial, the medical evidence of the physicians consulted by Ms. Leverman, would not have supported the extent of disability observed by Ms. Kleeman. That, however, together with defense counsel's other submissions about the reports' admissibility or utility, would require me, in a sense, to conduct a vicarious trial, or a civil voire dire. I would have to review all of the evidence reasonably available, and conclude what the trier of fact might have concluded regarding admissibility. In the absence of clear and objective evidence that would compromise the admissibility or utility of the reports, I am not prepared to engage in that process. In Fung v. Berkun, the court found clear and objectively established evidence of facts that, if known to the expert, would almost certainly have affected and/or qualified his conclusions. That is not the case here.”

[46] I am satisfied that it was at least proper, if not necessary, for counsel to retain Ms. Phillips in this proceeding. There were certainly rehabilitation issues within Ms. Phillips apparent expertise to address; it is not for the registrar to second guess counsel on this choice: see McKenzie v. Darke [2003] B.C.J. No. 199 (S.C.).

[47] However, having reviewed Ms. Phillips reports, I am also satisfied that some of the conclusions reached or recommendations made by Ms. Phillips are either clearly beyond her area of expertise or usurp the role of the trier of fact: Sengbush v. Priest 14 B.C.L.R. (2d) 26 (S.C.). In those respects, I am satisfied that at least part of the reports would have no utility to the trier of fact.

[48] I am not prepared to say that the report would be entirely useless had the matter proceeded to trial. Some aspects such as the physical testing and parts of the rehabilitation recommendation could have had some utility.

[49] As to the reasonableness of the hourly rate charged, I am satisfied that $85 per hour is reasonable for some of the testing and interview time.

[50] I am not persuaded that any allowance should be made for Ms. Phillips’ travel.

[51] The result is that the amount allowed for Ms. Phillips’ services will be substantially reduced. Such a reduction must be somewhat arbitrary but is based on my experience in assessing similar disbursements. I assess Ms. Phillip’s necessary, proper and reasonable charges to be $750 (plus GST).

SUMMARY

[52] The plaintiff’s bill of costs is allowed as follows:

Total costs: $1,641.60

Total non-taxable disbursements: $ 270.00

Total taxable disbursements: $1,941.19

Total GST: $ 135.88

TOTAL ALLOWED: $3,988.67

“District Registar C.P. Bouck”

Citation:	*McKenna v Anderson,*
	2005 BCSC 84