In Schroeder v. McGivern, 2015 BCSC 362 (CanLII), the principles of assessing disbursements are outlined.  This assessment of the Bill of Costs results from a personal injury case (MVA) in which liability was admitted.  The issue to be analyzed was that of quantum.

The legal action was commenced on September 12, 2011 under Rule 15-1, Fast Track, and was thereafter removed from 15-1 and scheduled for 5 days. The trial was scheduled on December 16, 2013 and a formal offer was accepted by the Plaintiff on December 12, 2013 for $85 plus taxable costs and disbursements.

This hearing is an assessment of the Plaintiff’s Bill of Costs.

The arguments raised by the Plaintiff are:

• Due to passage of time before counsel was retained, there were obstacles to overcome to argue against causation
• Passage of time and causation arguments required an array of experts to respond to these issues and quantify the claim

The arguments raised by the Defendant are:

• Proportionality outlined in Rule 1-3 was raised – in which the monetary value that would have otherwise necessitated the fast track procedure
• The Plaintiff’s expert reports resulted in various opinions on the same subject matter with inconsistent findings
• There were different specialties of experts, but all assessing the same issue which defence counsel argues was “unnecessary, improper, and disproportionate” in comparison to the severity of injuries
• Arguments that all contested experts were unnecessary and improper
• In the alternative, the amounts charged by each expert were “excessive and unjustified an thereby out to be reduced”

The principles are defined:

Supreme Court Civil Rule 14-1 (5) provides:

(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.

[11]        There are a number of principles to be considered on an assessment of disbursements. Those applicable principles were summarized in Turner v. Whittaker, 2013 BCSC 712 (CanLII) at para. 5, wherein Master McNaughton 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 (CanLII)).
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,1982 CanLII 808 (BC SC),56 B.C.L.R. 176 (SC) rev’d 1983 CanLII 720 (BC CA), 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 (CanLII), 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 (CanLII), para. 21).

[12]        To these principles, I would add those in Holzapfel v. Matheusik (1987), 1987 CanLII 2659 (BC CA), 14 B.C.L.R. (2d) 135, which are summarized in Cloutier v. Wong, [1992] 12 CPC (3d) 169 where the Court stated at para. 5:

5         In Holzapfel v. Matheusik (1987), 1987 CanLII 2659 (BC CA), 14 B.C.L.R. (2d) 135, the Court of Appeal approved the following principles set out in the authorities:

1. The onus of proof rests on the party submitting the bill to establish affirmatively the necessity or reasonableness of the charges he claims as disbursements (Hall v. Strocel(1983),34 C.P.C. 170 (B.C.S.C.).
2. The solicitor responsible for the preparation of the case should give evidence, which may be by affidavit, verifying that the work was necessary for the full and proper presentation of the case and that the fees charged for the work were reasonable in the circumstances (Berite v. Schuette(1980),17 C.P.C. 259 (B.C.S.C.).
3. If the expert’s bill contains less than a reasonably detailed outline of the work he performed and the hours he devoted to his retainer, an affidavit sworn by the expert may be required (Berite v. Schuette(1980),17 C.P.C. 259 (B.C.S.C.).
4. The affidavit of verification does not bind the assessment officer but he should consider it carefully and weigh it against the other evidence (Bell v. Fantini; Fasciana v. C.N.R.(1981),1981 CanLII 614 (BC SC), 32 B.C.L.R. 322 (B.C.S.C.)).

[13]        In Bell v. Fantini (1981), 1981 CanLII 614 (BC SC), 32 B.C.L.R. 322 (S.C.) at para. 23, the Court stated:

23        I consider that Rule 57(4) entitles the Registrar to exercise a wide discretion to disallow disbursements in whole or in part where the disbursements appear to him to have been incurred or increased through extravagance, negligence or mistake or by payment of unjustified charges or expenses. The Registrar must consider all the circumstances of each case and determine whether the disbursements were reasonably incurred and were justified. He must be careful to balance his duty to disallow expenses incurred due to negligence or mistake, or which are extravagant, with his duty to recognize that a carefully prepared case requires that counsel use care in the choice of expert witnesses and examine all sources of information and possible evidence which may be of advantage to his client.

The decision of the Court:

Disbursements:                Invoice:                                Allowed:

Laser Printing:                   $574.25                                 $350.

Taxi Costs                                                                            Disallowed

Courier                                 $206.16                                 $206.16

 

In regards to the expert reports, the court concludes:

Proportionality is a relevant consideration pursuant to Supreme Court Civil Rule 1-3. The defendants cite Kern Chevrolet Oldsmobile Ltd. v. Canadian Pacific Ltd. (1986), 1986 CanLII 769 (BC CA), 7 B.C.L.R. (2d) 170, where the Court of Appeal concluded, in a property damage case, that “the factor of the amount at stake is relevant” when looking at the overall costs of the experts involved.

[29]        I agree that the amount at stake is a relevant consideration. However, in the present case, the defendants initially took the position that the plaintiff’s injuries were not causally related to the motor vehicle accident. Subsequently, a formal offer to settle was made in the amount of $25,000. Eventually, following the exchange of the various expert reports, the case settled shortly before trial for $85,000 plus taxable costs and disbursements.

[30]        I do not doubt the settlement was achieved, in part, because the plaintiff’s injuries and alleged financial losses were documented to a point which satisfied the defendants that the offer made was appropriate, and they were otherwise at risk.

[31]        Also relevant to the proportionality issue is the fact that the plaintiff was a minor at the time of the injury, had only recently entered the workforce at the time of trial, had persistent symptoms requiring investigation and proof of causation which was further complicated by the passage of time.

[32]        Unlike the property damage in Kern Chevrolet Oldsmobile Ltd., the plaintiff’s damages could not be quantified from a static position. The plaintiff’s injuries had to be diagnosed, and the etiology determined, with an accompanying prognosis over the course of the years.

[33]        Considering the various factors, I do not consider the array of experts in the present case to be disproportional. I agree with the defendants that there is an overlap in the opinions of the various medical experts. However, each expert was examining the same plaintiff, exhibiting the same symptoms. In these circumstances, overlap is inevitable.

[34]        I am satisfied that each of the experts opined within their area of expertise.

[35]        The defendants had identified areas in the opinions of the experts where their opinions diverged, or were inconsistent to some extent. Having reviewed the expert reports, I conclude that, for the most part, the experts confined themselves to their specific areas of expertise and what contradictions there were, did not detract from the fact that the opinions were necessarily and properly obtained in the conduct of the proceeding.

The next issue to analyze is whether the amounts charged were excessive.  Also, note, where adequate explanations were not provided or a lack of evidence provided in the Affidavit material, the fees were disallowed.

• Rush fee and double rush fee             Disallowed
• Trial preparation and cancellation fees Allowed
• Trial booking fee Disallowed
• Dr. Singh’s cancellation fee Disallowed (no evidence re: re-book)
• Reproduce file of Dr. Singh Allowed
• Financial reports Allowed
• Dr. Koo 50% surcharge Disallowed
• Dr. Pullyblank (dual role) Allowed
• Dr. Matrick’s account reduced by 900. Allowed
• MRI Allowed

CONCLUSION

[55]        “Where the contested disbursements have been allowed, the applicable taxes are also allowed. If a certificate is required, one can be submitted through the Registry for signature.”

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