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Tag: TAF

ICBC Ordered to Pay $250 for "Misguided" Refusal to Pay $15 Fee

Written by admin on . Posted in BC Supreme Court Costs Cases.

When people hire a lawyer in British Columbia a $15 ‘trust administration fee’ must be paid to the Law Society of BC.  Basically a mandatory tax.
When a plaintiff hires a lawyer to resolve a dispute with ICBC this fee needs to be paid.  If the Plaintiff is a successful litigant ICBC needs to indemnify this fee as a disbursement.  They don’t like to do so.  Today, reasons for judgement were published by the BC Supreme Court, Vancouver Registry, (Garayt v. Deneumoustier) with some harsh words for ICBC’s routine ‘misguided’ refusal to accept this disbursement.  In ordering the disbursement paid along with a $250 award in further costs Registrar Cameron provided the following reasons:

[6]            I agree with these submissions and would add that on numerous occasions on assessments that I have presided over I have advised counsel for the Insurance Corporation of British Columbia, who are retained to defend these motor vehicle related personal injury claims under our provincial automobile insurance program, that unless there is an issue as to whether or not the Plaintiff’s counsel has received a deposit into trust in respect of resolution of the litigation, there is absolutely no justification to put the trust administration fee into issue.

[7]            I have said to counsel, who come with instructions to oppose the TAF disbursement that those instructions are simply misguided and the matter ought not to be raised on an assessment unless there is an issue about the deposit being made. There is no such issue in this case.

[8]            I have jurisdiction pursuant to Supreme Court Rule 14-1(14) to award costs arising from an improper act or omission. The applicable Rule reads as follows:

Costs arising from improper act or omission

(14)   If anything is done or omitted improperly or unnecessarily, by or on behalf of a party, the court or a registrar may order

(a)  that any costs arising from or associated with any matter related to the act or omission not be allowed to the party, or

(b) that the party pay the costs incurred by any other party by reason of the act or omission.

[9]            In this case the Plaintiff was put to unnecessary cost to address this objection to the TAF and I am satisfied that it is appropriate pursuant to Rule 14-1(14)(b) to allow an additional amount for costs in recognition of the failure of the Insurance Corporation of British Columbia to abide by the very clear case law not to make TAF an issue unless there is a proper basis for doing so.

[10]        Finding that there was no proper basis in this case and that the concession was only made this morning, I allow the Plaintiff an additional $250 in costs.

Full Rule 15 Costs Apply Where"Significant Preparation For Trial" Undertaken – TAF is Recoverable Disbrursement

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 15. 49 Comments on Full Rule 15 Costs Apply Where"Significant Preparation For Trial" Undertaken – TAF is Recoverable Disbrursement

Reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry addressing two important topics; the assessment of costs for fast track actions when they settle before trial and the recoverability of Trust Administration Fees as a disbursement.
In last week’s case (Christen v. McKenzie) the Plaintiff settled his ICBC claim after litigation was well underway for specified damages plus “costs payable“.  The parties couldn’t agree on these with the Plaintiff seeking full Rule 15 costs and ICBC arguing that a lesser amount should be paid because “a number of pre-trial steps involving a substantial amount of work were still required to be performed as the case settled seven -and-a-half months prior to the commencement of trial“.  Madam Justice Arnold-Bailey awarded the full cap noting that while the trial was a ways off significant trial preparation steps were undertaken and this was sufficient to trigger the Rule 15 cap. The Court provided the following reasons:
[35]         To my mind significant preparation for trial ought to be sufficient to entitle the successful party to costs for pre-trial preparation to the full amount of the cap, presently $6,500 pursuant to Rule 15-1(15). Pre-trial preparation may take various forms given the demands of the particular action. Whether the parties engage in extensive negotiations or mediation and thus achieve a settlement months or days before trial, the preparation by counsel may easily approach that required to actually conduct the trial. The focus ought to be on the amount of useful preparatory work done and not where in the pre-trial timeline the resolution was reached. Indeed, the focus of Rule 15-1 and the Civil Rules generally is to encourage early and fulsome preparation to resolve cases earlier as opposed to later if possible; and also to limit the scope of the proposed trial to what is truly at issue, thus reducing the time and costs associated with resolving the dispute.
[36]         In the present case it is clear that the matter was substantially prepared to the level necessary to achieve a significant settlement prior to trial. While there may be fast track cases where a review of the costs amount claimed for preparation is warranted, this is not one. However one dissects and analyzes what was done or not done to prepare this case for trial, a considerable amount of preparation was performed by plaintiff’s counsel to achieve the sizable settlement. Extensive and protracted negotiations, such as occurred here, ought not to be regarded as requiring significantly less preparation than preparing a case for mediation or trial. Indeed, such negotiations are to be encouraged as the most cost‑effective way of dealing with cases that would otherwise proceed to trial. The efficacy of conducting a fast track action ought not to be undermined by a costs analysis that bogs down in the picayune.
The Court also noted that a Trust Administration fee is a fair disbursement a successful litigant can claim. Madam Justice Arnold-Bailey provided the following comments addressing this:
37]         I note that the plaintiff’s claim for the trust administration fee of $10 plus $1.20 in taxes is not now disputed by the defendant McKenzie and the third party. The following authorities support it being claimed:Parrotta v. Bodnar, 2006 BCSC 787 at para. 25; Polubinski v. Twardowski, 2007 BCSC 843; and McCreight v. Currie, 2008 BCSC 1751. Therefore the plaintiff’s claim for $11.20 in relation to the trust administration fee (including tax) is successful.

ICBC Injury Claims, Trials and Disbursements

Written by admin on . Posted in Civil Procedure, Uncategorized. 1 Comment on ICBC Injury Claims, Trials and Disbursements

Generally speaking it can be very expensive to bring an ICBC injury claim to trial in British Columbia.  I’m not talking about lawyers fees here.  There are many very well qualified personal injury lawyers in BC who handle ICBC injury claims on a ‘contingency basis’ and most Plaintiffs with a good claim have the luxury of shopping around finding a lawyer that is the right fit for them.  What I’m referring to is the actual out of pocket cost of bringing a case to trial in the British Columbia Supreme Court.  These are called ‘disbursmemnts’.
Most ICBC injury claims focus heavily on the nature and extent of car accident related injuries.  To properly present such a case in court expert opinion evidence is necessary.  Doctors are entitled to charge fees for providing this service and these fees can quickly get into the thousands of dollars, particularly with complex injury cases such as brain injury claims and chronic pain disorders.  Other fees, such as court filing fees, witness fees, process servers fees, photocopying expenses (these can quickly add up particularly in ICBC jury trials where multiple copies of all exhibits must be made) are also commonly incurred.
Most lawyers that advance ICBC injury claims on a contingency basis fund the disbursements to bring the case to trial.  After judgement the court has certain powers set out in the Rules of Court to award the victorious party their ‘costs and disbursemnts’.  If the parties can’t agree on which disbursements were reasonable an application can be made to the Court to make a ruling.
Reasons for judgment were released today dealing with the issue of ‘reasonable disbursements’ following a BC personal injury claim.  Some of the more interesting expenses allowed, from my perspective, were 3 MRI scans paid for privately through Canadian Medial Imaging.  These were allowed because “(a doctor) clearly did recommend an MRI to try to assess the cause of (the Plaintiff’s) ongoing problems”.  Also, the Trust Administration Fee (a fee lawyers must charge in BC when opening a new file) was held to be reasonable and the Defendant was ordered to pay this cost.  
While this judgement does not create any new law it is worth reviewing to see the types of expenses that are sometimes incurred in prosecuting ICBC injury claims and to see how the BC Supreme Court deals with the issue of reimbursement of these expenses.  If you are advancing an ICBC injury claim in the BC Supreme Court you should keep judgement such as this one in mind when deciding what expenses you will incur while preparing your case for trial.