Tag: Cancellation Fees

More Disbursement Caselaw

Adding to this site’s archived caselaw addressing disbursements in injury litigation, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, addressing the reasonableness of a variety of disbursements in the prosecution of an ICBC Claim.
In last week’s case (Kezel v. Greenslade) the Plaintiff was involved in two collisions in July 2007.  She sued for damages and in the course of the lawsuit accepted an ICBC formal settlement offer for $46,000 plus costs and disbursements.  The parties agreed to reasonable costs but a variety of disbursements were challenged.   The judgement is worth reviewing for the Court’s discussion of the following disbursements:
1. Medico-legal reports from multiple experts
2.  A Functional Capacity Evaluation
3.  A Defence Medical Exam Cancellation Fee
4.  Outside Legal Fees
5.  Mediation Administration Fees
6.  Photocopy Charges
7.  Legal Alternative Courier Charges
8.  Office Supplies

Defence Medical Exams and Cancellation Fees

Reason for judgement were released today by the BC Supreme Court, New Westminster Registry, addressing cancellation fees charged by doctors when a Plaintiff fails to attend a previously agreed to independent medical exam.
In today’s case (Minhas v. Virk) the Plaintiff was involved in a 2007 BC motor vehicle collision.  The Plaintiff alleged brain injury.  The Plaintiff attended two independent examinations with specialists of the Defendant’s choosing and agreed to attend a third appointment.  As the third exam date approached the Plaintiff ultimately reneged on his agreement by adding a condition that the Defence was not prepared to agree to.
The doctor’s office had a policy to charge $1,650 unless he was given 2 months notice of cancellation.  The Plaintiff did not comply with this policy and instead gave just over 2 working days of notice.
The Defendant brought a motion seeking to have the Plaintiff assessed by the doctor and to pay the cancellation fee.  Master Caldwell ruled that it was inappropriate for the Plaintiff to “unilaterally rewrite” the previous agreement to see the doctor and ordered the Plaintiff undergo the independent medical exam.  The Court refused, however, to order that the Plaintiff pay the cancellation fee finding 2 days notice was sufficient.  Master Caldwell provided the following useful reasons:
[15] The request that the plaintiff be required to pay the cancellation fee for the December 21 appointment is dismissed.  There is no evidence before me which indicates what, if any, efforts the doctor made to fill that appointment slot or to otherwise mitigate his loss.  In addition, I find Dr. Wong’s requirement of 2 months notice to be unreasonable, particularly in the absence of any explanation.  In this case the cancellation occurred on either the 15th or 16th of December (if not earlier) thus providing at least 2 full working days notice and probably more.  The material before me which simply states the doctor’s cancellation policy and nothing more, simply does not support the order sought.
The Court was also asked to order a further medical exam with a different specialist.  This application was dismissed with the Court noting that one of the purposes of the New Rules of Court is to “move toward a focusing and limiting of experts and expert opinion“.

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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