Raju v. Bui and Insurance Corporation of British Columbia,


2008 BCSC 1230

Date: 20080910
Docket: M064156
Registry: Vancouver


Rita Raju



Tuat T. Bui



Insurance Corporation of British Columbia

Third Party

Before: Registrar Sainty

Reasons for Decision

Counsel for the Plaintiff:

R.A. Keith

Counsel for the Third Party, I.C.B.C.:

R.A. Hodgins

Date and Place of Hearing:

September 2, 2008


Vancouver, B.C.

[1]                This matter arises out of a motor vehicle accident which occurred on or about November 8, 2004. The matter was scheduled to proceed to trial on September 22, 2008 but was settled in June 2008 for $25,000 plus taxable costs and disbursements. The plaintiff filed this appointment for an assessment of her costs and that appointment came before me on September 2, 2008.

[2]                The parties have agreed on the costs portion of the bill of costs (as $5,482.40) but the claim for disbursements remains in issue, although only three items of disbursements are disputed:

(a)        the expert medical reports;

(b)        the fees for the private investigator; and

(c)        the amount charged for photocopies.

[3]                The accident occurred in November 2004. Liability and quantum of damages were in issue. At the time of the accident the plaintiff was working full time as an office administrator. In January 2005, the plaintiff was laid off from her employment. One of the issues in this matter was the extent to which the plaintiff’s injuries affected her abilities to perform her duties and whether her difficulties with her employment were caused by or contributed to by the accident.

[4]                The plaintiff remained off work until November 2005 when she again secured employment. That employment was terminated in February 2006. The plaintiff says it was terminated as a result of issues relating to the motor vehicle accident. The employer apparently says she was laid off for cause. In April 2006, the plaintiff obtained work with Telus. In September 2006, she retained Ms Keith who says it was clear, from the outset, that there was a psychological aspect to the case.

[5]                In October 2006, Ms Keith obtained a narrative report from the plaintiff’s general practitioner (Dr. Yong). In November 2006, the plaintiff began being treated by a psychiatrist (Dr. Liang) on referral from Dr. Yong. Dr. Yong and Dr. Liang might be called the plaintiff’s “treating practitioners”. In addition to those two treating practitioners, the plaintiff retained a variety of other experts to assist in the presentation of her case for trial.

[6]                Dr. Shuckett, a rheumatologist, was retained in January 2007 to provide an opinion regarding the plaintiff’s ongoing neck, shoulder and arm pain. Dr. Shuckett diagnosed the plaintiff with fibromyalgia and recommended a specialist consult.

[7]                Dr. Schmidt assessed the plaintiff in July 2007. He opined that it was possible the plaintiff had suffered a mild traumatic brain injury in the accident.

[8]                In March 2007, Ms Keith engaged the services of Mr. Slater, a private investigator to conduct witness interviews. He interviewed a number of people including:

(a)        Mr. Mortazavi, the plaintiff’s former boyfriend, the plaintiff’s mother and Minamur Chaudrey, a friend of the plaintiff, each of whom provided information about the plaintiff’s health and functioning both before and after the accident;

(b)        Ms Sadek and Ms Pallan, both former co-workers who were able to verify the plaintiff’s difficulties with her back and neck while working after the accident;

(c)        Mr. Cabell, an executive with one of the plaintiff’s pre- and post-accident employers who provided information about the plaintiff’s termination in January 2007.

[9]                Because she was aware that the case had some psychological aspects, shortly after being retained, Ms Keith arranged for the plaintiff to be seen by Dr. Roy O’Shaughnessy. Due to Dr. O’Shaughnessy’s busy schedule, that appointment was scheduled for more than a year hence. As the plaintiff’s condition appeared to worsen over time, Ms Keith had the plaintiff keep the appointment with Dr. O’Shaughnessy. Dr. O’Shaughnessy diagnosed a pain disorder, post-traumatic stress disorder and major depressive disorder resulting from the accident.

[10]            In the latter part of 2007 and early 2008, the plaintiff’s condition worsened. Ms Keith attempted to contact Dr. Shuckett to discuss the plaintiff’s worsening condition. Dr. Shuckett did not respond so Ms Keith decided to have the plaintiff assessed by Dr. Anton, a physical medicine specialist. Dr. Anton recommended that the plaintiff be referred to a psychiatrist for more aggressive treatment.

[11]            In June 2008, the plaintiff instructed counsel to accept an offer from the defendant for $25,000 plus costs and disbursements. Ms Keith says that, an overriding factor in the plaintiff’s acceptance of the offer was her inability to continue with the litigation, particularly in the face of issues of causation, credibility and liability.

[12]            As regards the claims for the experts’ reports, the plaintiff seeks reimbursement of some $12,230.35 for reports from five experts. Mr. Hodgins, for the defendant, argues that, as the plaintiff chose to commence this action under Rule 68 (which imports a degree of proportionality to the proceedings) the plaintiff is restricted to claiming disbursements for only one expert. He bases this argument on the provisions of Rule 68(33) of the Supreme Court Rules:

(33)      Unless the court orders otherwise, a party to an expedited action is entitled, under Rule 40A, to tender the written statement of, or to call to give oral opinion evidence, not more than

(a)        one expert of the party’s choosing, and

(b)        if the expert referred to in paragraph (a) does not have the expertise necessary to respond to the other party’s expert, one expert to provide the required response.

[13]            This Rule, he submits, then restricts the plaintiff to claiming disbursements relating to one expert only, unless Ms Keith has obtained a court order allowing more than one expert. Mr. Hodgins says that, as the plaintiff did not seek leave from the court to introduce more than one expert report, the plaintiff ought to be limited to claiming for only one expert’s report as part of the disbursements in this action. He says, based on the principles of proportionality and the express limit on the number of reports permissible in such an action, it was not reasonable or proper to engage this number of experts.

[14]            In contrast, Ms Keith argues that this is an assessment of costs under Rule 57 of the Supreme Court Rules, not under Rule 68. Accordingly, the test is:

[W]hether at the time the disbursement or expense was incurred it was a proper disbursement in the sense of not being extravagant, negligent, mistaken or a result of excessive caution or excessive zeal, judges by the situation at the time when the disbursement or expense was incurred (Van Daele v. Van Daele (1983), 56 B.C.L.R. 178, 45 C.P.C. 166 (C.A.), at ¶11).

[15]            Ms Keith also suggests that she did not choose to commence the action under Rule 68 – rather, she says she had no choice but to do so as the Rule applies to all matters filed in Vancouver with claims between $25,000 and $100,000. Having commenced her action, she then was required to determine, in the circumstances of her particular client, what her injuries might be and, as part of that process, it was necessary and proper for her to engage several experts. Further she says that I ought not to take the amount this matter settled for as indicative of the actual value of the claim.

[16]            I agree with Ms Keith that, in the circumstances of this particular action (where the plaintiff was clearly fragile) it was reasonable and necessary to engage a number of experts to assess the plaintiff.  If that is the case, then does the application of Rule 68 still prevent the plaintiff from claiming disbursements for each of those experts? I think not. Rule 68 does not say that a party is restricted, on an assessment of costs, from claiming for the costs of more than one expert. It simply says that, without leave of the court, a party may not elicit testimony from more than one expert witness. Ms Keith was, in my view, obliged as counsel to try and determine the extent of the plaintiff’s injuries and to understand the cause(s) of them. She would not have been able to do that without resort to the opinions of the various experts engaged.

[17]            I do not have to deal with the issue of whether it was mandatory to commence this claim under Rule 68 as I have decided that the Rule itself does not prevent the plaintiff from making her claim.

[18]            I understand that the third party (Insurance Corporation of British Columbia) takes no position with the amount of the accounts (i.e., agrees that the amounts charged by each expert are reasonable in the circumstances). Their argument related simply to whether the costs for more than one report ought to be awarded to the plaintiff.

[19]            As for the fees for Mr. Slater, the private investigator, the law is clear:

[A]n investigator’s account should be allowed as a disbursement “only where it appears that there was some particular reason why the special skills of an investigator were required”. (See McCann v. Moss (1984) 58 B.C.L.R. 129 (S.C.), at ¶8, quoting the decision of Esson, J in Nobel v. Wong (1982), 38 B.C.L.R. 246, 231 (S.C.), aff’d at (1983), 148 D.L.R. (3d) 740.)

[20]            Mr. Hodgins argues that none of the parties interviewed were adverse or hostile, nor were their identities unknown to the plaintiff. Further, he says, there is insufficient evidence before me as to why the special skills of an investigator were necessary.

[21]            Ms Keith says that Mr. Slater was retained due to the nature of the relationships the plaintiff had with the persons to be interviewed, which included the plaintiff’s former employers (and some of her co-workers) from the places she worked and from which she was dismissed. Ms Keith suggested at the hearing that the plaintiff shared very fractured relationships with many of the individuals who were interviewed by Mr. Slater. In this regard, she submits that it was necessary and proper of her to retain Mr. Slater to perform the interviews and avoid putting herself in a situation where she might have to become a witness. This is exactly, she argues, the type of situation contemplated in the McCann case, supra.

[22]            Despite Ms Keith’s claims that the plaintiff’s relationships with each of these witnesses was fractured, I am unable to conclude that it was necessary to engage the services of Mr. Slater to interview each and every one of them. I can see that it would be useful to have an independent third party interview the plaintiff’s former employer (since there may have been issues regarding the reasons for her termination). However, I am not persuaded on the evidence before me that it was necessary to engage Mr. Slater to interview each of the plaintiff’s mother, friends, ex-boyfriend or former coworkers. All I have is the affidavit of Ms Keith’s assistant (which is based on information and belief) and Ms Keith’s statement that in her opinion it was necessary to have an investigator perform the interviews because of the fractured nature of the relationships between the plaintiff and the (potential) witnesses. In my view, particularly as the plaintiff must prove the necessity and reasonableness of the disbursements for which reimbursement is sought, that evidence is insufficient. Had I had recourse to the investigator’s notes or testimony from him personally as to the nature of the interviews, I might have been otherwise persuaded.

[23]            All I have from Mr. Slater is a one page “invoice” confirming the fees of “Encore Claims Services” (which I understand to be Mr. Slater’s company) are $1,170 plus $10 for long distance. There is no description of the matters undertaken, the time expended or how the fee was arrived at (either by some sort of hourly rate or otherwise). I do believe that the plaintiff ought to recover something for, at a minimum, the interview with her former employer. On occasion, on an assessment of costs of this nature, a registrar must employ somewhat “rough justice” in arriving at figures for disbursements, using his/her unique experiences as a registrar. In this case, I believe that the sum of $400 is a reasonable amount to have paid to Mr. Slater to investigate this matter and to interview the plaintiff’s former employer.

[24]            The final disbursement that is contested is photocopies. The third party does not question the rate at which the photocopying has been charged to this matter ($0.25 per page) but does submit that the number of copies is excessive. He says that, in this case, there were no motions, no case management conferences, and no real trial preparation and, accordingly, there was not a need for so many copies.

[25]            The affidavit of Ms Keith’s legal assistant (Ms Zemliya) (at ¶43) confirms that 4,174 pages of copies were made at a cost (at $0.25 per page) of $1,043.28[1]. The affidavit also notes that the law firm uses a “CopiTrack” system which logs the number of pages photocopied for each file and that (at ¶42) the charges mostly relate to reproducing reports and medical records for the plaintiff’s treating doctors and caregivers to provide those documents to the various experts. Ms Zemliya also deposes that significant photocopying charges were incurred in the process of providing defence counsel, the Insurance Corporation of British Columbia and the plaintiff with copies of relevant medical records and reports.

[26]            In his submissions, Mr. Hodgins refers me to Fleming v. Burnett, 2007 BCSC 1305, wherein Master Hyslop (as registrar) in deciding what number of photocopies was reasonable in the matter before her said (at ¶23-6):

[23]      The plaintiff listed in exhibit 8 the photocopies and faxes and the dates for these expenses.

[24]      Given the number of times that this matter was before the court, I do not doubt many photocopies were required and necessary.  The defendants argue that they were provided a binder when the rule did not require it.  The defendants were acting on their own and required delivery of various documents, and it is for this reason that fax expenses were incurred.

[25]      In assessing the photocopies I am guided by the words of Registrar Blok in Sovani v. Jin et al, 2006 BCSC 855 at ¶4:

The assessment of photocopying costs is typically a rough-and-ready exercise, which is very much in accordance with the comments of the English Court of Appeal in a case called Re Eastwood, [1974] 3 All E.R. 603 (C.A.), where the Court said that the assessment of costs was a matter of rough justice insofar as it admitted of much sensible approximation, or words to that effect.  That is exactly what registrars must apply when assessing photocopying expenses or considering the volume of photocopying claimed in a case.  Thus it is not an exercise of arithmetic or math or the examining of photocopying machinery expenses or matters of that sort, but is often looking at an array of binders, a collection of banker’s boxes, assessing what copies were needed for experts, what document discovery was involved, whether there was a jury such that they required individual copies, and all those sorts of matters, and applying experience gained from numerous other cases, to arrive at a sensible approximation of the volume of necessary copy work.

[26]      In the spirit of that comment, I discount photocopies by 10% and allow them at $562.50.  I allow the faxes as sought.

[27]            Mr. Hodgins also relies on Bailey v. Thiessen, 2005 BCSC 1108, and specifically ¶19-20 wherein Master Baker (as registrar) notes:

[19]      There remains the question of the number of copies.  Mr. Johnsen acknowledges that the number presented (4,891) includes every copy made that was tracked to Ms. Bailey’s office file.  He explained, however, that briefs were prepared for both mediation sessions and for trial (as the matter settled just three days before the trial was to commence).  He also was obliged to forward considerable documentation to his experts to inform them of the context of the case and Ms. Bailey’s particular circumstances.  It does not surprise me, therefore, that over the life of the proceeding a relatively large number of copies were made.  With respect, I expect that more than 80 (i.e. 1.6%) of these copies (para. 7 above) were not, within the meaning of Rule 57(4)(a), necessary.  Counsel as a matter of course and for good reason routinely send to their clients copies of all correspondence, even the mundane and pro forma letters.  While this assists in informing the clients of their suits’ progress (or not), it cannot be said that all such copies are necessary.  On the other hand, counsel usually send photocopies of medical records, reports, opinions, or the like to their clients so that the client may review the documents for errors or omissions and instruct counsel accordingly. I would regard such copies as necessary.

[20]      Taking into consideration the nature of this case (i.e. a claim for personal injury, and not one based on documents per se), the length of time that counsel acted for Ms. Bailey (in this case approximately three years)  and the number and variety of experts and expert reports, I expect that the total number of copies can be reduced by 400.  The photocopy cost is therefore allowed at (4,491 x $0.25 =) $1,122.75 together with tax of $78.59 thereon.

[28]            Finally, Mr. Hodgins suggests that, as the plaintiff ought to be limited to claiming for one expert’s report, so too should she be limited to claiming for copies relating solely to one expert’s report. As I have ruled against Mr. Hodgins on this point, I do not intend to reduce the number of photocopies on the basis that there should have been only one expert’s report commissioned and used.

[29]            Ms Keith on the other hand says that the copies “are what they are”. All of the copies were “necessarily or properly incurred in the conduct of the proceeding” (per Rule 57(4)(a) of the Supreme Court Rules. As such, she submits, I ought to allow them all.

[30]            On this point, I agree with each of my learned colleagues (Master Hyslop in Fleming v. Burnett and Master Baker in Bailey v. Thiessen (all supra)) that generally speaking, not all photocopies made on a file are made for the purposes of the litigation and are necessary to the litigation. In fact, Ms Zemliya’s affidavit of disbursements notes that many of the copies were made to keep the plaintiff informed. Some reduction in the numbers of copies is appropriate.

[31]            I intend, following in the footsteps of my learned colleague Registrar Blok in Sovani v. Jin, to employ “rough justice” in determining this issue. I would discount the photocopies by some 15 or so percent and would allow 3,500 copies in total (at $0.25 per page) for total copy expenses of $875 (plus applicable taxes).

[32]            All other disbursements (as well as the tariff items) are allowed as agreed to between counsel.

[33]            If a certificate is required, counsel may prepare one and forward it to me for my signature. As my notes are not entirely clear on the amount of disbursements agreed to between the parties, I will require that both counsel signify their approval as to form on the certificate, if one is required.

“Registrar Sainty”

[1] The claim in the bill of costs is for this amount ($1,043.28). $0.25 times 4,174 equals $1,043.50. It appears that there is a (small) error in the bill of costs.