Plaintiff's Lawyer Allowed to "Charge" ICBC For Records Reimbursement Under Legal Profession Act

Interesting reasons for judgement were released today by the BC Supreme Court, Prince George Registry, finding that a Plaintiff’s lawyer could use the Legal Profession Act to resolve a dispute for failure of the Defendant’s insurer to reimburse the cost of providing clinical records in the course of litigation.
In today’s case (Garth A. Wright Law Corporation v. ICBC) the Lawyer represented a Plaintiff in a personal injury action.  In the course of the claim ICBC requested various records from the lawyer and indicated that “We confirm that once we are in receipt of the records, our office will forward a cheque reimbursing your firm for costs incurred in obtaining same“.
The lawyer provided the records to ICBC and issued an account for their production.  ICBC did not pay the account.  The lawyer took the unusual turn to force payment of the Account using the mechanisms available under the Legal Profession Act.
ICBC argued that the Legal Profession Act could not be used as ICBC was not the Plaintiff’s lawyer’s client.  Master Baker disagreed and found that the Court did have jurisdiction to resolve this dispute.  In dismissing ICBC’s challenge to the Court’s jurisdiction Master Baker provided the following reasons:

[9] Mr. Wright submits a narrow point, that this court has jurisdiction under ss. 69(1) and 70(3)of the LPA to consider the account.  Those sections read:

69  (1) A lawyer must deliver a bill to the person charged.

and

70 (3) Subject to subsection (11), a lawyer may obtain an appointment to have a bill reviewed 30 days or more after the bill was delivered under section 69.

He argues that a party need only conform to the very narrow definition of “person charged” to be subject to the provisions and process of the LPA, and need not be the solicitor’s client per se.  He likens the whole issue to a simple contract; Ms. Reynolds requested/offered, he accepted, and thereby a contract, of sorts, arose.  He does not specifically claim a contractual right in this transaction but simply uses the analogy and submits that “the person charged” need not be a client, but need only be a party that has agreed to pay for whatever service has been requested. ..

[17] First, there is no question that a conventional solicitor/client relationship need not be established to bring a matter within ss. 69(1) and 70(3)…

[21] Even so, and notwithstanding Mr. Wright’s argument that he does not have to prove that complying with Ms. Reynolds’ request was giving a legal service, I think it was.  There is absolutely no doubt that the process of obtaining and forwarding medical records includes purely clerical acts, but it would be a mistake to ignore other aspects that include legal expertise and judgment.  Ms. Aviss’ evidence is that Mr. Wright routinely reviews the records on receipt and prior to forwarding copies.  It is the responsibility of all litigation counsel to review documents for relevance, privilege, and, occasionally, privacy.  Medical records, in particular, routinely cause disputes as to the proper form of production; should they be produced unedited (in British Columbia the so-called Jones format), or should they be redacted (the Halliday format)?  The only way for that to proceed is for counsel to exercise legal skills and judgment.  That’s a legal service.

[22] I do not consider the court constrained in this proceeding by the definitions contained in the Social Service Tax Act.  The definitions and exclusions in that Act are for specific application of the purpose of that Act; i.e. the taxation of various goods and services.  They cannot have such a broad application that they trench on or restrict another statute.

[23] There is no doubt that there was an agreement between ICBC and Mr. Wright but, as in Walker and Wilson, I have the same question to answer as did Master Horn.  What did the parties agree to?  I have concluded that the parties agreed that ICBC would pay Mr. Wright’s reasonable costs of the process, and that the costs were not restricted either solely to indemnifying the doctor’s charges for the copies, nor to eventual party and party tariff costs/disbursements.  As with Walker and Wilson, if there was misunderstanding it was on Ms. Reynolds’ part.  I conclude that all elements in the context of this transaction lead to the conclusion that what was reasonably intended was reimbursement of both payment to the medical office and a photocopying charge by Mr. Wright’s office…

[26] Mr. Wright’s account to ICBC for obtaining, photocopying, and forwarding the records of a non-party is a charge properly brought by appointment under the LPA.