Tag: District Registrar Cameron

Disbursement Interest Claim Allowed at 6%

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, allowing a Plaintiff to recover interest charged on a loan which financed disbursements.
In today’s case (Phippen v. Hampton) the Plaintiff sued for damages following a personal injury.  In the course of the claim the Plaintiff borrowed funds from a company associated with the lawfirm she hired to advance her personal injury claim.  This loan was for disbursement funding and the lender charged interest at 15%.  The Court was satisfied that the loan was needed but reduced the recoverable interest to 6%.  In reaching this conclusion District Registrar Cameron provided the following reasons:
[2]             I am satisfied based upon the Affidavit evidence provided by Ms. Phippen, that she has established that her financial situation was such that it was necessary and proper for her to seek out financing for the disbursements that needed to be incurred to pursue her claim…
[5]             Mr. Mullally goes on to say — and I do not find this to be controversial — that it is difficult for most clients who have suffered a personal injury to finance the necessary disbursements that must be incurred to advance their case.
[6]             In passing, of course, this highlights the need for contingency fee agreements that allow for access to justice and alongside that disbursement loan arrangements, if they can be accommodated by the law firm or arranged by the law firm also help with that same purpose in mind…
[12]         Turning to the circumstances of this case, Ms. Phippen was charged an interest rate of 15 percent by PIL.
[13]         In Chandi, supra, Mr. Justice Savage said that the Registrar must consider the entire context of the arrangement.  In this case — and I refer back to Mr. Mullally’s evidence — while the law firm did not itself lend the funds necessary for the disbursements to the Plaintiff, a company that the law firm or members of the law firm had a controlling interest in provided that assistance.
[14]         Looking at the matter contextually I find that the law firm was not arm’s length from the lender, PIL. This was properly conceded by Plaintiff’s counsel. In this case, the law firm arranged the necessary loan for the Plaintiff that provided for a profitable rate of interest to the lender. In the current economic climate, I am not satisfied that an interest rate of 15 percent is reasonable to pass along to the Defendant, and as Master McDiarmid and Master Young have done in the decisions I  have referred to, I will award a rate of six percent.
 

The Contractual Nature of Accepted Formal Settlement Offers

As previously discussed, when a formal settlement offer dealing with costs consequences is accepted the BC Supreme Court had no discretion to make a different order with respect to costs.  Reasons for judgement were released this week confirming this principle.
In this week’s case (Tomas v. Mackie) the Defendant made a formal settlement offer $77,400.   The offer included the usual term that, if accepted, the Plaintiff would be entitled to reasonable costs and disbursements up to the date of the offer and the Defendant would be entitled to their costs and disbursements from that time onward.
The Plaintiff accepted the offer 13 days after it was derived.  During this period further costs were incurred.  The Plaintiff argued that the Defendant should be responsible for these as the Plaintiff should have the benefit of a reasonable period of time to consider the offer.  District Registrar Cameron was sympathetic to this argument but ultimately disagreed noting there is no judicial discretion to deviate from the terms of the accepted formal offer.  In reaching this conclusion the Court provided the following reasons:
[9]             Mr. Loewen submitted that the acceptance of the settlement offer constituted a binding agreement and as a result the court has no discretion to vary the terms of that agreement under Rule 9-1 or 14-1 of theSupreme Court Civil Rules.
[10]         Mr. Loewen referred to a number of authorities in support of his argument that clearly were not before Registrar Sainty…
[14]         Applying these authorities, it is clear that I do not have the discretion to vary the terms of the settlement agreement made by the parties and they should obtain a date from the Registry for the assessment of both the Plaintiff’s and the Defendants’ costs pursuant to Rule 14-1 of the Supreme Court Civil Rules.
 

Follow Up Medical Reports After the Passage of Time Are Not "Extravagant" Disbursements

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing the reasonableness of multiple physician reports ordered in the course of a personal injury prosecution.
In this week’s case (Zhang v. Heikkila) the Plaintiff was injured in a motor vehicle incident.  In the course of her lawsuit she obtained multiple medical reports.  The first from her GP in 2009.  This report opined on prognosis.   Following this the Plaintiff obtained a report from a physical medicine specialist and as trial neared the Plaintiff obtained an updated report from her GP.  ICBC challenged the reasonableness of these disbursements arguing they were excessive.  District Registrar Cameron disagreed finding these disbursements were properly recoverable.  In reaching this decision the Court provided the following reasons:
15]         In my view, in evaluating whether or not it was necessary or proper to incur these disbursements for the medical legal reports, one must consider more broadly what should be done in the preparation of the Plaintiff’s case.
[16]         To be properly equipped to advise a client on the merits of settlement in circumstances such as existed in this case competent counsel not only has to investigate and assess the liability issue but also consider the likely range of damages.  It would be expected that competent counsel would obtain medical opinions in a timely fashion and that is what occurred in this case.
[17]         Plaintiff’s counsel obtained the first report from the general practitioner approximately two years after the accident and in my view that report was properly obtained at that time.
[18]         The report documented concerns respecting the Plaintiff’s future in terms of her employability and continuing physical limitations resulting from the injuries sustained in the accident.
[19]         After reviewing this report, Plaintiff’s counsel then decided to obtain an opinion from a specialist in physical medicine being Dr. Kiaii, who provided her report dated April 20, 2012.  That report provided an evaluation of the Plaintiff’s level of function, her symptomatic complaints and some prognosis and recommendations to follow.  Again, obtaining that report at that time was, in my view, proper for the advancement of the Plaintiff’s case.
[20]         The last report in issue was an updated report from Dr. Sun dated February 18, 2013.  While that report was obtained about sixteen months following the first report, given the Plaintiff’s ongoing symptoms and the need to have a more current assessment of those symptoms for the purposes of preparing for trial or for settlement, I do not find that it was extravagant or a sign of excessive caution that Plaintiff’s counsel obtained that report when she did.
[21]         Fundamentally, I am keeping in mind that in a situation such as this, the assessing officer ought not to second guess competent counsel doing a competent job because other counsel might have handled the matter differently.
[22]         Having found that these three disbursements were necessarily or properly incurred and as the amount for each of them is not challenged, they will be allowed as presented.

Full Rule 15 Cap Amount is Appropriate For Settlement 3 Months Before Trial

Reasons for judgment were published today by the BC Supreme Court, New Westminster Registry,(Berekoff v. McMath) finding that full Rule 15 costs were appropriate where a matter settled 3 months before trial and the only meaningful work that was left related to witness preparation.
In finding costs of $6,500 were appropriate in these circumstances District Registrar Cameron provided the following reasons:
[2]             The parties are at odds as to whether or not the costs that should be awarded to the Plaintiff as mandated by Rule 15-1(15) should be reduced at all from what is called the “cap amount”, or $6,500, for a matter that settles before trial. The Plaintiff asserts that the full amount should be awarded and the Defendant argues for a significant reduction to take into account that not all of the preparation for trial had been done on behalf of the Plaintiff before the settlement…
[7]             In this case, I am satisfied on the evidence that very significant preparation had been done by Mr. Caissie on behalf of the Plaintiff. He submitted if the case had not settled all he would have been left to complete was the final preparation of his client to give evidence at trial, to prepare the Plaintiff’s family physician and his chiropractor to ready them for giving their evidence at trial, and lastly, an attendance at a trial management conference that would have been held on July 11, 2013.
[8]             With all of this I would have awarded the Plaintiff the entire cap amount of $6,500. However, Mr. Caissie had agreed before this hearing that a 10% reduction should be applied and as such I will allow the costs as claimed of $5,850 plus applicable taxes.

Private "Non Urgent" MRI Cost Denied as Disbursement

Earlier this year reasons for judgement were released declining to reimburse a private MRI cost as a disbursement due to lack of evidence of urgency.   Reasons for judgmeent were released last week by the BC Supreme Court, New Westminster Registry, reaching a similar conclusion.
In last week’s case (Kumanan v. Achim)the Plaintiff was injured in a collision and her treating physicians requested an MRI for diagnostic purposes although the need for this was described as “non-urgent”..  The Plaintiff arranged the MRI through a private facility.  In declining the disbursement associated with the private MRI the Court noted that while there was nothing unreasonable about obtaining an MRI in there was no evidence justifying straying through the MSP system.  In rejecting the disbursement the Court provided the following reasons:
[4]             In evidence was a note from Dr. Harji dated July 16, 2011 that read:
For diagnostic clarification in regards to this individual’s MVA related injuries, I would advise MRI of cervical and lumbar spine.  I would avoid radiation based imaging, i.e. x-rays and CT as well as bone scans.
[5]             On July 17, 2011, Dr. Suddall who was a physiatrist scheduled to examine Ms. Kumanan also requested an MRI examination of her cervical and lumbar spine.  His note read:
Persistent neck and back pain with minor right sided hand and leg symptoms.  Difficulty functioning and remains unable to resume working.  X-ray report, CT report pending from Mount St. Joseph Hospital.  I have asked patient to proceed with MRI of cervical and lumbar spine privately via lawyer and ICBC.
[6]             Importantly, Dr. Harji describes the Plaintiff’s status for this purpose as non-urgent…
[10]         …In this case, there was no trial date pending when the MRI examination was requested by the two physicians.  Rather, a notice of trial was not filed until August 2012 reserving a trial date for March 2013.  As matters transpired, this case settled in February of 2013.
[11]         I was not provided with any evidence as to what the wait time may have been to have the MRI examination done in the public health care system.  It is also noteworthy that while the recommendation for the MRI examination was made in mid July 2011 it was not acted upon until after some other x-rays were done in October 2011 and only after that, on November 2nd, 2011, was the MRI examination done.
[12]         I am left to wonder whether that if a place had been reserved in the public health care system in July 2011, the Plaintiff might not have had the MRI examination done if not by November of 2011, not too much longer thereafter.
[13]         Accordingly, I am not satisfied that it was reasonable to incur this expense when it was incurred and it is disallowed.

Privileged and Undisclosed Report Recoverable As Disbursement

Reasons for judgement were released recently by the BC Supreme Court, New Westminster Registry, making it clear that the costs of a privileged and undisclosed expert report can indeed be a recoverable disbursement.
In the recent case (Sidhu v. McNair) the Plaintiff was injured in a 2009 collision.  In advancing the case the Plaintiff obtained a report form the Plaintiff’s GP and neurologist.  The GP report was privileged in not disclosed.  ICBC argued that “this disbursement…was not necessary or proper (due to the fact) that Plaintiff”s counsel chose to maintain privilege over its contents
District Registrar Cameron disagreed and allowed the disbursement. In doing so the Court provided the following reasons:
[8]  I was also referred to a recent decision of Master Bouck in Cooknell v. Cooknell, 2013 BCSC 1653.  Her Honour very cogently set out the principles that ought to be applied in determining whether or not a disbursement should be recovered and says:
A “necessary” disbursement is one which is essential to conduct the litigation. A “proper” disbursement is one which is not necessary but is reasonably incurred for the purpose of the proceeding:MacKenzie v. Darke, 2003 BCSC 138 at para. 18..
Her Honour goes on to say:
 When considering whether a disbursement is proper, the correct viewpoint to be adopted by a taxing officer is that of a sensible solicitor sitting in his chair and considering what, in light of his then knowledge, is reasonable in the interests of his client: Francis v. Francis and Dickerson, [1955] 3 All E.R. 837 at p. 840. Also, taxing officers ought not to second guess a competent counsel doing a competent job, solely on the grounds that other counsel might have been more sanguine or less cautious in determining how the job ought to be done
[9]  I respectfully agree with these statements and having been advised of the rationale for obtaining the report and the matters addressed by Dr. Sekhon I am satisfied that the decision that was made to obtain the report was proper ad the cost is reasonable.  The disbursement is allowed as presented.
To my knowledge this decision is not publicly reported but as always I am happy to provide a copy to anyone who contacts me and requests one.

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.

MRI Disbursement Allowed Where Expense Incurred for Dual Purposes

Reasons for judgment were released last week by the BC Supreme Court, Vancouver Registry, allowing the costs associated with a private MRI to be recovered as a disbursement in a personal injury claim.
In last week’s case (Wu v. Ly) the plaintiff commissioned a private MRI following a motor vehicle collision.  This was done following a recommendation of her treating physician.  In allowing this disbursement to be recovered District Registrar Cameron provided the following brief reasons:
[7]             In Colasimone v. Ng and Mo, 2007 BCSC 1179, Madam Justice Gropper was dealing with an appeal of a decision of District Registrar Blok (as he then was) that allowed the cost of MRI scans as a taxable disbursement.  Her Ladyship notes:
In his reasons for judgment Registrar Blok describes MRI scans as presenting a “special problem in considering party and party bill of costs.”  He notes that MRI scans can be used for either or both treatment and litigation and sometimes the line is blurred. The Registrar concludes:
I am satisfied that a sufficient litigation purpose was shown on the evidence before me such that the disbursement was reasonably incurred, necessary and proper in a litigation purpose.  Specifically the purpose here was for Mr. Maryn to make a decision about the impending trial.
Registrar Blok has considered the “special problem” that MRI scans present in his decision of Ward v. W.S. Lessing Ltd., 2007 BCSC 877.  He comments that the cost of MRI scans have been allowed and disallowed as a disbursement.  There are cases which support either position, but as the Registrar notes, each turns on its facts.  The Registrar continues:
If an MRI was performed for the purposes of treatment, then it may be claimed as an item of special damages.  If it is used as an aid in the litigation process, then it is properly claimed as a disbursement on a party and party bill of costs.  Those are the typical questions that are dealt with when MRIs are at issue.
[T]here must be some judgment applied, perhaps with medical input, in considering the necessity for the procedure in a litigation context, given the injuries involved, the likely damages, what the MRI is expected to achieve from a litigation standpoint and so on.
[8]             In paragraph 22 of her decision, Her Ladyship concludes by saying, having reviewed all of the evidence:
Thus the scans were for two purposes:  to determine the extent of the plaintiff’s injuries and for treatment purposes.
[9]             In the result Madam Justice Gropper upheld the Registrar’s decision, finding he did not clearly err in finding that the disbursement related to MRI scans was reasonably, necessarily and properly incurred for the purposes of the litigation.
[10]         In this case there is evidence before me that the impetus for the MRI was from Dr. le Nobel, who was a treating physician for the Plaintiff and who was continuing to suffer ongoing pain and discomfort some four years following the motor vehicle accident.  Because of Dr. le Nobel’s concern about her continuing symptoms and to better assess them, he recommended that an MRI examination be done.
[11]         Mr. Wiseman was involved as counsel in the process and pointed out that the cost for the MRI examination was one that was paid directly by him.  He was concerned to have the best evidence available to serve as a foundation to most reliably assess the Plaintiff’s claim for damages. I am satisfied that this is one of those cases where the MRI was obtained for two purposes being  for diagnosis and also to assist the Plaintiff and her counsel in better evaluate and present her claim for damages.
[12]         Mr. Chalcraft did not take any issue with the cost of the MRI other than to object to the claim for interest.  Mr. Wiseman abandoned the claim for interest, and as a result the MRI disbursement is allowed as claimed in the sum of $1,595.

Private MRI Disbursement Disallowed Due To No Evidence of Urgency

Reasons for judgment were released this week by the BC Supreme Court, Vancouver Registry, disallowing recovery of the costs of a private MRI in a personal injury lawsuit.
In this week’s case (Repmicki v. 616696 BC Ltd) the plaintiff obtained a private MRI in the course of his lawsuit.  At settlement the parties could not agree whether this disbursement was reasonable and brought the matter before the Court.  District Registrar Cameron held that while having an MRI was reasonable, there was no evidence justifying the expense to be privately incurred.  In dismissing the claimed disbursement the Court provided the following reasons:
[5]             While the medical evidence that I was referred to satisfies me that obtaining an MRI examination in this case was a reasonable step to take in the Plaintiff’s interest and to assist with a determination of whether or not there was a causal link to her neck, upper back, and lower back injuries and the motor vehicle accident, I am not satisfied that it was reasonable to incur the additional expense to have the MRI examination done in the private healthcare system.  I may have been persuaded it was reasonable to do so if, in fact, there was evidence that there was going to be an ongoing and significant delay in having the MRI examination done in the public healthcare system, but that evidence was not before me.
[6]             For these reasons, the disbursement will be disallowed.

"Compelling Facts and Circumstances" Required to Depart from Rule 15 Pre-Trial Settlement Cap

Further to my previous posts on this topic, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, confirming that when a Rule 15 matter settles pre-trial and the settlement agreement incorporates costs, these should be assessed at $6,500 unless there are compelling facts and circumstances.
In the recent case (Ostadsaraie v. Shokri) the Plaintiff settled his claim 55 days prior to the scheduled trial and also prior to his Trial Management Conference.   The Plaintiff sought $6,500 in costs and Registrar Cameron agreed this amount was appropriate   After canvassing the relevant authorities the Court provided the following reasons:
[8]             In this case, Ms Neathway had done a substantial amount of preparation and delivered a settlement offer that resulted in a settlement of the case some 55 days before trial. There was a housekeeping matter left to be done, a trial management conference – but given the settlement, it did not occur.
[9]             Ms Neathway had delivered all of her expert reports and had prepared and completed all of the discovery in readiness for trial. She was frank to say that she would have needed to interview again one or more of the witnesses that would be called at trial and of course complete the final preparations for her client to give his evidence at trial. Nonetheless, a substantial amount of the preparation had in fact been completed by the time the settlement was made and in the circumstances it is appropriate to award the plaintiff the full amount of the cap…

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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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