Tag: disbursements

ICBC Opposes Translator Fees on Basis of Law Firm Advertising

Reasons for judgment were released this week by the BC Supreme Court, Vancouver Registry, addressing the reasonableness of private translator fees incurred by a lawfirm advancing a personal injury case.
In this week’s case (Jin v. Caleca) the Plaintiff, whose first language is Mandarin and whose “ability to communicate in the English language is very limited” hired a personal injury lawfirm to advance her case.  The firm hired a translator which assisted in communicating with the client.  When the case settled ICBC challenged this disbursement arguing that based on the law firm’s advertisements ICBC should not be on the hook for this expense.  District Registrar Cameron disagreed and ordered that the disbursement be paid. In doing so the Court provided the following reasons:
[4]             The Defendants do not take any issue with the decision by the law firm to retain a translator to assist the lawyers in the firm to fully and effectively communicate with the Plaintiff.  It is conceded that this was a proper or necessary disbursement.
[5]             Further, the Defendants do not take any issue with the reasonableness of the translation fees claimed in the sum of $1,122.27. Rather, they ground their objection to paying this disbursement on their interpretation of the print advertising done by the law firm aimed at attracting new clients to the firm.
[6]             There is a considerable amount of affidavit evidence before me, but the matter resolves down to this:  at the time that this retainer agreement was entered into on February 5th, 2010, the law firm web site was silent as to what obligation, if any, a client would have to pay the cost of translation fees.  At the time the web site provided that the law firm offered services in a number of foreign languages.
[7]             Approximately one year later, in February 2011, the law firm web site advertisement was changed and it said that translator fees are provided “at no cost to you”. Based on this change to the web site advertising, Ms. Hall, on behalf of the Defendants, submitted that there should be read into the fee agreement between the Plaintiff in this case and the law firm a provision that she would be held harmless for any translation fees and as such she ought not to be able to recover them on this assessment.
[8]             With respect, I do not agree. While I will not express a view as to whether or not there ought to be any recovery of a translation disbursement incurred for a client who retained the law firm after the change to the advertisement in February 2011, it is common ground that in February 2010 when the subject retainer was entered into there was no term in the retainer agreement that held the Plaintiff harmless for any translation fees.
[9]             There was no evidence before me to support any amendment to the existing retainer agreement between the Plaintiff and her law firm and based upon the concessions I have noted that were made by the Defendants, the disbursement is allowed.

When Does An Award of $20,000 = A Significant Debt

No, this is not a trick question.  When can a judge awarding you $20,000 leave you in ‘significant’ debt?  The answer is when you fail to beat a formal offer at trial and have ‘loser pays’ costs assessed you.  I’ve discussed this reality previously and it was demonstrated yet again in reasons for judgement released last week by the BC Supreme Court, Vancouver Registry.
In last week’s case (Gonzales v. Voskakis) the Plaintiff was injured in a 2008 collison.  Prior to trial ICBC provided a formal settlement offer of $69,000.  The Plaintiff rejected this and proceeded to have a 12 day trial where she sought in excess of $385,000.  The claim was largely unsuccessful with the trial judge awarding just over $20,000 in damages.  ICBC asked that the Plaintiff be stripped of post offer costs and that the Defendant be awarded post offer costs and disbrsements.  The Plaintiff argued that such a result would “negate her entire judgement and leave her significantly in debt“.   Madam Justice Fitzpatrick noted that the underlying “behaviour modification objective” of the Rules of Court override any sympathy to the Plaintiff and levied substantial costs consequences.
The decision is also worth reviewing for the discussion of whether a post offer costs award to a Defendant can include disbursements.  The Plaintiff argued the Rules don’t contemplate this but the Court disagreed. In finding disbursements were also encompassed in the Rule Madam Justice Fitzpatrick provided the following reasons:
[65]         Rule 9-1(5) is headed “Cost options”. It is clearly intended to guide the court in deciding what costs award is just. Nevertheless, I do not see that subcategory (d) was intended to limit the discretion of the court to award a defendant’s disbursements in all cases when rewarding a defendant for making a reasonable offer. In many cases, disbursements are significant. In fact, the driving force behind an offer to settle may be the desire to avoid having to pay those disbursements. To limit the discretion of the court in awarding disbursements would defeat the clear intention of the Rule.
[66]         Although Brown J. came to another conclusion in Moore relating to double disbursements under Rule 9-1(5)(b), it appears that Kendall and Skidmore were not in front of her at that time. Therefore, in applying the principles set out in Re Hansard Spruce Mills Ltd., [1954] 4 D.L.R. 590, I do not consider that I am bound by her reasoning.
[67]         I acknowledge that the wording of Rule 9-1(5), in its reference to “disbursements” in subcategory (a) without an accompanying reference to “disbursements” in subcategory (d), is awkward and confounding. In my view, however, the fundamental purpose of the Rule — which, as stated by the Court of Appeal in Kendall and Skidmore, is to compensate for all “costs”, including disbursements — has not changed. One can only hope for some clarity on this issue by possible amendments to Rule 9-1(5).
[68]         In the meantime, I conclude that I have the discretion under Rule 9-1(5)(d) to award the defendant his costs, including disbursements.
[69]         I award such costs, which will include disbursements, in favour of Mr. Voskakis for the period from January 25, 2012 until February 29, 2012.

Commercial Copy Rates Not Helpful When Addressing Reasonable Photocopy Disbursements

A decision was recently publshed by the BC Supreme Court website addressing reasonable photocopy disbursements in an ICBC Claim.  Although it is a 2006 decision decided under the old rules, the Court’s comments remain relevant finding that commercial photocopy charges are not helpful when deciding a reasonable rate to charge for photocopy disbursements due to litigant privacy concerns.
In the recently published case (Kind v. Leung) Master Caldwell provided the following observation:

5] There is also information in here about photocopying through commercial endeavours.  There are privacy concerns related there and I take counsel’s point, but again the physical cost of copying in those facilities seems to run between five cents and 10 or 11 cents per page.

[6] Making allowance for in-house copying at a reasonable rate to meet the obligations of privacy and confidentiality, given the costs as I seem to have limited information here in the material relating to equipment, I am not able to indicate or to determine on the material provided by the plaintiff that their costs exceed 30 cents a page.  The rate set will be 30 cents per page.

You can click here to access more recent caselaw addressing photocopy disbursements.

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

Photocopy Disbursements Allowed at $0.25 per Page in ICBC Claim


(Update October 2, 2012The below post was upheld on appeal in reasons for judgement released today)
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing reasonable photocopy expenses in a bill of disbursements.
In the recent case (Chow v. Nguyen) the parties could not agree to the reasonableness of various disbursements incurred in the prosecution of a personal injury claim.  In the course of the lawsuit the Plaintiff’s lawyer made 7,231 photocopies and claimed disbursements at $0.25 per copy.  ICBC argued this was unreasonable.  Master McDiarmid disagreed and allowed this disbursement as presented.  In doing so the Court provided the following reasons:

[4]Counsel for the defendant and third party also objected to the photocopy charges. She accepted plaintiff’s counsel’s representation that the 7,231 photocopies were in fact made. There was no argument that the photocopying was not necessary or proper; rather, the argument was that the 25¢ per page was excessive given the actual cost of photocopying. When assessing costs, a registrar must determine which disbursements have been necessarily or properly incurred in the conduct of the proceedings, and I must allow a reasonable amount for those disbursements (Rule 14-1(5) of the Supreme Court Civil Rules (the “Civil Rules”)).

[5]Pursuant to Rule 14-1(1) of the Civil Rules, I am to assess costs in accordance with Appendix B. Administrative Notice 5 effective July 1, 2010 directs that photocopying charges may be allowed at 25¢ per page on a party/party bill of costs. This amount is a guideline only. If it is shown that the actual cost was or should have been different from the guideline charges, the amounts allowed on an assessment may differ from the guideline amounts.

[6]The actual cost of photocopying is difficult to determine, in as much as it involves a combination of fixed costs, per page costs, and labour costs. There was no evidence before me to show what the actual cost was. I find that in the circumstances of this case, the number of photocopies was both necessary and proper, and I allow the photocopying charges as claimed in the amount of $1,807.75, plus applicable taxes.

This case is also worth reviewing for the Court’s discussion of document binding charges (dismissed as overhead) and the cost of fairly expensive expert reports which were allowed as being reasonable given the circumstanses of the case.

Rule 9-1 Does Not Allow the Court to Award Double Disbursements


(Update – April 19, 2013 – The below decision should be cross-referenced with reasons for judgement released today (Gonzales v. Voskakis) where Madam Justice Fitzpatrick came to a different conclusion)
Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, confirming that the Court cannot award double disbursements following a trial where a formal settlement offer was bested.
In this week’s case (Moore v. Kyba) the Plaintiff was awarded substantial damages in a jury trial following a motor vehicle collision.  The damages awarded exceeded both the Plaintiff’s and Defendant’s pre-trial formal settlement offers.  The Plaintiff brought an application seeking double costs and double disbursements.  Mr. Justice Brown held that while it was appropriate to award double costs, Rule 9-1 does not go so far as to give the Court authority to award double disbursements.  Mr. Justice Brown provided the following reasons:
[8]I am not convinced by the applicant’s argument.  The repeal of the definition relied on in Browne v. Lowe is not determinative and does not require its reversal.  In any event, I conclude that the proper interpretation of Rule 9-1(5) does not permit the Court to award double disbursements.  In Rule 9-1(5)(a), the rule specifically provides for disbursements, while Rule 9-1(5)(b) does not.  Therefore, properly interpreted, Rule 9-1(5)(b) does not permit the Court to award double disbursements after the delivery or service of the offer to settle.

The High Risk of Personal Injury Trials: The Costs and Disbursements Swing


As previously discussed, personal injury trials can be risky and expensive.  The British Columbia Supreme Court has a so-called ‘loser pays’ system which generally makes the losing side pay the winning side’s costs and disbursements (the hard expenses associated with running a trial such as court filing and expert witness fees).  Last month the BC Supreme Court, Victoria Registry, released reasons for judgement demonstrating this reality.
In this recent case (Sartori v. Gates) the Plaintiff was injured in 2005 when a truck owned by his friend accidentally struck him.  The Plaintiff sued for damages.  As the lawsuit progressed ICBC made a formal settlement offer of $230,000 plus costs and disbursements.
The Plaintiff presented his own formal offer of $600,000 plus costs and disbursements.   These offers were rejected and the claim proceeded to trial.  Ultimately a jury found the Plaintiff 33.3% at fault for the collision but accepted that he was injured and awarded damages.
When all the dust settled, the Plaintiff was awarded $234,000.  ICBC argued that since the final result was “within a knife’s edge” of their offer that the Plaintiff should be stripped of his post offer costs and disbursements.  This was a significant development because the Plaintiff spent over $120,000 in disbursements while advancing his claim.
Ultimately Mr. Justice Wilson found that this result would not be fair.  However, the Court disallowed disbursements associated with one of the Plaintiff’s expert witnesses and further reduced the disbursements the Plaintiff was entitled to by 1/3 to take into account the jury’s finding of fault and section 3 of the Negligence Act.  Some quick math reveals this results in about $40,000 of the real costs of advancing the claim not being recovered by the Plaintiff.  This large swing highlights the need to consider potential costs consequences when deciding whether to settle an ICBC claim or to proceed to trial.
This recent case is also noteworthy for a few other reasons.  ICBC argued that the usual rule of a winner receiving costs should not be followed given how close the settlement offer was to the jury verdict.   Mr. Justice Wilson rejected this argument providing the following useful reasons:

[42] The governing principle on the first issue, is R. 14-1(9).  The material words of that subrule, on this application, are:

… costs of a proceeding must be awarded to the successful party unless the court otherwise orders.

[43] The onus is on the defendant to persuade me why I should otherwise order….

[55] The plaintiff reminds me that the discretion conferred by the cost rules must be exercised judicially.  The parameters of that judicial duty were referred to in Stiles v. B.C. (Workers’ Compensation Board), and iterated consistently thereafter.  The court said:

… The discretion must be exercised judicially, i.e. not arbitrarily or capriciously.  And, as I have said, it must be exercised consistently with the Rules of Court.  But it would be a sorry result if like cases were not decided in like ways with respect to costs.  So, by judicial comity, principles have developed which guide the exercise of the discretion of a judge with respect to costs.  Those principles should be consistently applied; if a judge declines to apply them, without a reason for doing so, he may be considered to have acted arbitrarily or capriciously and not judicially.

[56] The Rules of Court mentioned in that extract are those cited above.  The “principles … developed …” or “purposes”, were referred to in Giles v. Westminster Savings and Credit Union:

The purposes for which costs rules exist must be kept in mind in determining whether appellate intervention is warranted.  In addition to indemnifying a successful litigant, those purposes have been described as follows by this Court:

•     “[D]eterring frivolous actions or defences”:  Houweling Nurseries Ltd. v. Fisons Western Corp. (1988), 37 B.C.L.R. (2d) 2 at 25 (C.A.), leave ref’d, [1988] S.C.C.A. No. 200, [1988] 1 S.C.R. ix;

•     “[T]o encourage conduct that reduces the duration and expense of litigation and to discourage conduct that has the opposite effect”:  Skidmore v. Blackmore (1995), 2 B.C.L.R. (3d) 201 at para. 28 (C.A.);

•     “[E]ncouraging litigants to settle whenever possible, thus freeing up judicial resources for other cases”:  Bedwell v. McGill, 2008 BCCA 526, 86 B.C.L.R. (4th) 343 at para. 33;

•     “[T]o have a winnowing function in the litigation process” by “requir[ing] litigants to make a careful assessment of the strength or lack thereof of their cases at the commencement and throughout the course of the litigation”, and by “discourag[ing] the continuance of doubtful cases or defences”:  Catalyst Paper Corporation v. Companhia de Navegaçao Norsul, 2009 BCCA 16, 88 B.C.L.R. (4th) 17 at para. 16.

[57] Giles is also authority for the proposition that the “usual rule” is that costs follow the event…

Here, this plaintiff did succeed.  The defendant’s argument is that he did not succeed to the extent of his aspirations.  Therefore, goes the argument, the defendant should have the costs of establishing that failure.

[81] In my opinion, that proposition is not a phenomenon contemplated by R. 14?1(14) or Forrest v. Gaidner.

[82] My conclusion on the first issue is that the defendant has not persuaded me that this is a case on which I should otherwise order.  The plaintiff is entitled to his costs, subject to the disallowance of one day of trial and disbursements associated with Dr. Hunt’s involvement.

Interest on Disbursements in Injury Claims Recoverable "As a Matter of Principle"


Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, illustrating a welcome development in BC personal injury law.
As discussed on previous occasions, injury lawsuits can be expensive and oftentimes individuals rely on their lawyers to finance the costs necessary to prosecute their claim.  These costs can easily add up to tens of thousands of dollars and significant interest can accrue on these expenses (called disbursements).  After claim settlement or trial a debate often arises as to who should pay the interest on disbursements.
Earlier this year Mr. Justice Burnyeat held that “The law in British Columbia is that interest charged by a provider of services where the disbursement has been paid by counsel for a party is recoverable as is the disbursement.  The interest charge flows from the necessity of the litigation.  If the disbursement itself can be assessed as an appropriate disbursement, so also can the interest owing as a result of the failure or inability of a party to pay for the service provided.” Last week a case was released going further holding that in the appropriate circumstances interest charged by lawyers for financing disbursements can be recoverable as a disbursement.
In last week’s case (Basi v. Atwal) the Plaintiff was injured in a motor vehicle collision.  The Plaintiff hired a lawfirm that financed the prosecution of the claim.  The lawfirm did so through a line of credit which in turn charged interest.  The interest was passed on to the client.  After settlement ICBC argued that the interest charged was not a reasonable disbursement.  Registrar Bolton disagreed and provided the following instructive reasons:
…In… Milne v. Clarke [2010], BCSC 317, the learned judge quite clearly says that the successful party is entitled to interest on a specific disbursement where the provider of the service in question had charged interest to counsel for that party.
I see no reason in principle to distinguish this decision on the basis that in the Milne case, the interest has been charged by the provider of the service to the law firm and, therefore indirectly to the client, whereas here the interest is being charged directly by the lawyers pursuant to an agreement they have with their own bank.
So I am satisfied that the charge is potentially proper, give the appropriate circumstances.  Here, the circumstances are that the law firm has an arrangement with its own bank to fund disbursements.  They are funded on the basis of an agreement of paying six percent over prime.  I am satisfied that that is a reasonable interest rate in these circumstances…
So to summarize: first of all, I accept that the principle of allowing interest is one that the law recognizes, at least since this decision of Mr. Justice Burnyeat.  Secondly, I am satisfied that the accounting that would be required to satisfy the court that the charge does relate specifically to this particular file, has been properly done.  Thirdly, I am satisfied that the interest rate being charged by the bank is reasonable…
In those circumstances, that only leaves the question of amount to be decided…as a matter of principle, or law, I suppose, I am satisfied that a claim for interest here is proper.
As readers of this blog know, I like to link to the full judgments of the cases discussed here.  As of the date I write this post Basi v. Atwal remains unpublished.  I will link to the case should this change but in the meantime am happy to e-mail a full copy of the case to anyone who may need it.

Challenging ICBC Surveillance Disbursements – Evidence of Necessity Required


If parties to a lawsuit can’t agree which disbursements were reasonably incurred they can ask the Court to decide the issue.  As recently discussed, it is important for parties to bring appropriate evidence to Court to justify their disbursements.  This was further addressed in reasons for judgement released today by the BC Supreme Court, New Westminster Registry.
In today’s case (Hambrook v. Sandhu) the Plaintiff was injured in a 2004 BC motor vehicle collision.  In the course of the lawsuit ICBC made a formal offer to settle the claim for $75,000.   About 16 months later the Plaintiff accepted the offer.  The formal offer had a declining value reducing its amount by ICBC’s ‘costs and disbursements‘ incurred following the delivery of the offer.
After the offer was accpeted ICBC produced a bill of costs totalling almost $28,000.   Once of the biggest disbursements included in this total were the accounts of a private investigator who was retained to conduct video surveillance of the Plaintiff.  These accounts totalled almost $20,000.
The Plaintiff argued that ICBC’s disbursements were unreasoble.  Eventually the BC Supreme Court was asked to decide the issue.  Master Keighley sided largely with the Plaintiff and reduced ICBC’s account to just over $6,000.  In doing so the Court provided the following reasons refusing the disbursements related to the private investigator and addressing the need for parties to come to Court with adequate evidence:

[11]         As a general proposition, the party claiming reimbursement for sums expended in the course of litigation bears the burden of establishing the reasonableness of the charges claimed.

[12]         I have suffered, on this assessment, from a paucity of evidence offered by the defendants in support of the disbursement claims. With respect to the Lanki Investigations Inc. invoices I have no evidence before me as to the necessity for or results of these investigations. I am told by counsel that the investigations, which consisted largely of video surveillance, were instrumental in resolving this claim. I have no evidence as to this effect, however, only records of the amount of time spent by various individuals. I note that the surveillance took place after the delivery of the offer to settle and in the last two weeks prior to trial. Mr. Smith says that the surveillance materials were of little value and that the case settled when it did because of a clarification in the law of costs and a change in his client’s employment. The former, he says, meant that his client would potentially net more money as a result of accepting the offer than he had previously anticipated, and the second meant a substantial limitation of his claim for loss of future earnings. These details are confirmed to some extent by the plaintiff’s affidavit of February 6, 2009. In the circumstances, while I am not prepared to say that the defendants’ expenses for surveillance were entirely unreasonable, I am compelled by the tariff item and the case law to allow them only if settlement was achieved as a result of the services provided. In the absence of any evidence from the defendants on this point, I cannot do so. The Lanki accounts are disallowed.

More Than Lawyer's Say Needed For MRI's to be Recoverable Disbursements


Further to my previous post on this topic, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing when an MRI is a reasonable disbursement in a personal injury lawsuit.
In today’s case (Farrokhmanesh v. Sahib) the Plaintiff was injured in two BC collisions.  He sued for damages and settled his claims prior to trial.  However, the parties could not agree on whether some of the Plaintiff’s disbursements were reasonable.  The parties applied to the Court to resolve the issue and Registrar Sainty held that the Plaintiff’s privately retained MRI was not a recoverable disbursement.  The Plaintiff appealed this ruling.  Mr. Justice Ehrcke dismissed the appeal and in doing so made the following comments about MRI’s in personal injury lawsuits:

[33]         The applicant submits that the Registrar erred in principle by saying that there must be a medical reason for ordering the MRI. In my view, the applicant’s submission seeks to parse the Registrar’s decision too finely. In reviewing the Decision of the Registrar with the appropriate level of deference, it would be wrong to focus on a single word or a phrase taken out of the context in which it occurs.

[34]         When read in context, the Registrar’s reason for disallowing the cost of the MRI is that she found it was not necessarily or properly incurred. In coming to that conclusion, she took into account that no medical professional had advised counsel of the probable utility of an MRI in the particular circumstances of this case. Mr. Fahey had deposed in para. 11 of his affidavit that he was unaware of the plaintiff exhibiting any objective signs of injury when he ordered the MRI scans.

[35]         I am unable to find that the Registrar acted on a wrong principle in disallowing the cost of the MRIs in this case, and I would not interfere with her Decision.

To be on the safe side it is a good idea to have a treating medical practitioner requesting an MRI or other diagnostic test to maximize the chance that these expenses will be recoverable disbursements.

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If you would like further information or require assistance, please get in touch.

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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