Bhasin (Bhasin & Associates) v. Hrynew, 2011 ABQB 718

Court of Queen ’ s Bench of Alberta Citation: Bhasin (Bhasin & Associates) v. Hrynew, 2011 ABQB 718 Date: 20111121 Docket: 0203 02295 Registry: Edmonton Between: Harish Bhasin Carrying on Business As Bhasin & Associates Plaintiff - and - Larry Hrynew, Canadian American Financial Corp. (Canada) Limited, a Subsidiary of Allianz Life Insurance Company North America, Allianz Education Funds Inc. Defendants _______________________________________________________ Costs Memorandum of Decision of the Honourable Mr. Justice A.B.

Moen _______________________________________________________ Introduction [ 1 ] This application was for thrown-away costs with respect to new evidence that was required to found the opinion of the defendants expert, Mr. Bailey. [ 2 ] It came to light during the trial that a critical opinion given by Mr. Bailey required certain facts for the opinion to hold. On May 9, 2011 it became clear during the evidence being given by Ms. Pisko, the plaintiff’s expert, that the underlying factual basis for the opinion given by Mr. Bailey had not been made available to the plaintiff.

[ 3 ] I intervened. On my questioning it became evident that the defendants could produce the underlying data and agreed to do so. There was a discussion as to whether the trial needed to be adjourned to provide time for that production or whether the defendants could obtain and provide the evidence to the plaintiff in time for Ms. Pisko to provide a surrebuttal report prior to the end of trial. [ 4 ] Fortunately, all counsel were diligent in cooperating. They were able to arrange for the evidence to be provided to Ms. Pisko in time for her to provide a surrebuttal report prior to the end of trial.

An adjournment was not needed. However, additional resources were needed to respond to the new evidence and additional time was required by Ms. Pisko to prepare an additional report. [ 5 ] Further, there was additional time required for counsel for the plaintiff to prepare for the cross-examination of Mr. Bailey, with respect to the underlying data that had been provided by the defendants, some of which Mr.

Bailey had seen before preparing his report, but none of which had been seen by the plaintiff’s counsel or expert. [ 6 ] The issue for the court is whether there ought to be thrown-away costs awarded to the plaintiff for this additional work and, if so, the quantum of those costs. Discussion 1. Ought costs to be awarded? [ 7 ] The defendants did not seriously argue that no costs should be awarded. However, the defendants did note that it had been open to the plaintiff to request the information when its expert reviewed Mr. Bailey’s report and it became evident, or should have, that the data was missing.

Therefore, the defendants say, the fault for the missing evidence was partly at the feet of the plaintiff. [ 8 ] In this regard, the timing of the production of the experts’ reports becomes important. The plaintiff’s expert’s report was filed December 31, 2010. The defendants’ expert’s report was filed on March 18, 2011. The plaintiff’s rebuttal report was filed on April 29, 2011, days before the trial commenced.

These were short timelines for a trial that commenced on May 2, 2011. [ 9 ] At the time the plaintiff received the defendants’ expert report, the plaintiff did not raise the issue of the underlying evidence, nor did the defendants provide the underlying evidence. [ 10 ] It is the responsibility of the party giving an expert report to provide all the necessary underlying evidence to support the opinion given by its expert. This, of course, includes the documents that support the opinion, and viva voce evidence either in examination for discovery or at trial.

Therefore, in this case, it was the responsibility of the defendants to provide all evidence necessary to support the opinion of Mr. Bailey. As set out in my judgment, the opinion of Mr. Bailey as to the losses suffered by Bhasin was founded on averages of other CAFC agencies across Canada. It was the underlying data as to those agencies and whether they could properly be compared to Bhasin’s agency that was the issue. As it turns out, as I found, they could not. However, Ms. Pisko was not able to give a proper response, nor was plaintiff’s counsel able to properly cross-examine Mr.

Bailey without that data. [ 11 ] When it became evident to me on May 9, 2011 during Ms. Pisko’s testimony that she did not have the necessary data, I ordered the defendants to provide it or the opinion of Mr. Bailey was worth nothing. The choices at the time revolved around the defendants not proceeding with Mr. Bailey’s opinion in this regard, or adjourning the trial to allow the defendants to provide the underlying data to the plaintiff. The plaintiff chose to try to finish the trial in the time allotted and cooperate with the defendants as to the production of the evidence and preparation of Ms.

Pisko’s evidence in rebuttal to the opinion based on the new evidence. [ 12 ] When I asked the defendants why it was not provided, the response was that they intended to prove those facts at trial. The

facts were not likely to have been asked for by the plaintiff in the discovery process. My difficulty was that the facts to be proved would have been in documents held by CAFC and ought to have been provided as a matter of document production if those documents formed the basis for an expert opinion. [ 13 ] The trial commenced on May 2, 2011 and ended on May 26, 2011. It had been scheduled for three weeks but went over for three days. This was, in part, due to scheduling a new witness from the defendants to provide the court with the information necessary to understand the opinion of Mr. Bailey.

It also required additional time for Ms. Pisko’s surrebuttal report, which was given orally before the court at the end of the trial. [ 14 ] Counsel and the expert for the plaintiff clearly had additional work that had to be done, and had to be done in the context of the usual work required for trial preparation on a daily basis in a long trial. [ 15 ] I must ask whether that additional work would have been done in any event. No doubt some of the work would have been done by counsel and by the expert if the evidence had been provided earlier.

However, having to deal with that evidence in the middle of a trial, and in the middle of putting in an expert’s evidence put a strain on the scarce resources that are available during the currency of a trial. Further, plaintiff counsel’s trial strategy including the order of witnesses and preparation for the examination of all witnesses and the cross-examination of the defendants’ witnesses usually takes all the time counsel has outside of trial time. Analysing the new evidence and instructing the expert took plaintiff’s counsel’s mind from the task at hand. [ 16 ] Further, even though Ms.

Pisko would have had to do the work if given the information in advance, the fact is, she did unnecessary duplicated work in her preparation of her rebuttal report without the additional information. Therefore, given there is no realistic means by which I can calculate with precision the amount of time wasted originally, as against what she might have done if she had the information in the first place. The same observation applies to the work done by counsel. [ 17 ] I will not, therefore, reduce any of the lawyer’s fees or Ms.

Pisko’s fees on account of work that might have been done in any event. [ 18 ] I find that the plaintiff is entitled to Ms. Pisko’s costs as set out in her account plus four additional hours in the amount of $1,200.00 she spent in court waiting to give her additional evidence in giving her answer to Mr. Bailey’s opinion. [ 19 ] The same principles apply to the work done by the lawyer. [ 20 ] Counsel for the plaintiff sought his solicitor and client costs for the extra work engendered by the defendants’ failure to produce the documents necessary to support the opinion of the defendants’ expert.

His Bill of Costs in the amount of $5,977.13 included the examination of the new witness who needed to introduce the underlying documents. Counsel explained that he had not included many hours he had spent but not recorded as extra time for the production of documents issue. I find that his time is reasonable, that the time was spent on matters that were necessary to prepare for cross-examination and for instructing the plaintiff’s expert, and that the plaintiff ought to be compensated for this extra time spent by his lawyer. Further, the lawyer’s hourly rate of $225.00 is not out of line.

I am cognizant that putting extra pressure on the plaintiff and his counsel in the middle of a trial ought to be compensated on a thrown- away basis. It was absolutely unnecessary for this to come up. [ 21 ] As I suggested above, I cannot quantify easily the percentage of the extra work that would necessarily have been done if the evidence underpinning Mr. Bailey’s opinion had been provided before trial to the plaintiff.

However, there would certainly have been an overlap in the work done by counsel and earlier time wasted as I suggested above with respect to the plaintiff’s expert. [ 22 ] The plaintiff also asks for additional costs for other time spent by another person, the son of the plaintiff (Sunny Bhasin) who, the lawyer says, provided invaluable assistance in preparing, calculating and critiquing numerical calculations. Sunny Bhasin’s account was for the amount of $10,135.54 which included $895.54 for travel from Toronto return.

This was at a rate of $275.00 per hour. [ 23 ] Sunny Bhasin is engaged in the RESP business and understood the information. The defendants object to any costs being paid with respect to the work done by Sunny Bhasin.

[ 24 ] There is no principled reason why someone related to one of the parties or their counsel cannot provide professional assistance. The question is whether the assistance was necessary and the person providing the assistance has the capacity to do so. [ 25 ] That Sunny Bhasin was not qualified as an expert, was pointed out by the defendants. He gave evidence for his father’s case as an ordinary witness. During that evidence he was asked some questions concerning his background. He is a partner in an international management consulting firm. His consulting activities involve the RESP industry.

In 2008 he sat on the RESP Dealers Association of Canada. He has three degrees. A BSc from the University of Alberta, a degree in computer engineering from the University of Alberta, and an MBA from the University of Toronto. I acknowledge that the defendants were not given the opportunity to question Sunny Bhasin on his qualifications. [ 26 ] However, Sunny Bhasin was not just an ordinary witness. He had education and experience in business and in particular the RESP business.

In particular, counsel for the plaintiff explained that he needed the assistance of someone knowledgeable in the industry to analyse the reports provided to counsel. Normally, one would expect that the expert, Ms. Pisko, would have provided that assistance. However, plaintiff’s counsel advised me that Ms. Pisko was not available that weekend and that he needed the assistance of someone knowledgeable. Further, there were time pressures as Mr. Bailey was giving evidence and plaintiff’s counsel needed to prepare for cross-examination of him. The numbers had to be analysed so as to begin preparation for Ms.

Pisko’s further surrebuttal report. Once Mr. Bailey finished his evidence the case for the defendants was almost finished and to avoid an adjournment of the trial, Ms. Pisko was soon required to give her evidence. Counsel explained that he did not have the time to do the analysis and prepare the calculations. Therefore he needed the assistance of Sunny Bhasin. If Sunny Bhasin had not done those calculations, counsel would have been forced to do them. Counsel confirmed that Sunny Bhasin had done the work claimed.

Therefore, it seems reasonable for the court to award some costs to Sunny Bhasin as a substitute for additional costs that would have been incurred if Ms. Pisko had worked that weekend and as a substitute for fees that would have been expended by plaintiff’s counsel if he had to do the work. [ 27 ] However, the defendants pointed out that Sunny Bhasin was present for most of the trial, apparently in support of his father. When this issue came up, he helped plaintiff’s counsel.

First, I cannot accept the costs for travel from Toronto as it would seem reasonable that Sunny Bhasin would have travelled in any event because he was supporting his father. Further, the costs claimed by Sunny Bhasin cover a period of Thursday, May 19 to Wednesday, May 25.

It appears that the assistance given to plaintiff’s counsel by Sunny Bhasin at trial is also being claimed. [ 28 ] Although it is legitimate for counsel in a trial to use the support of an expert in an area where it is difficult to understand the expert evidence being given, in this case, given that Sunny Bhasin was present at the trial supporting his father, it would be unfair to attribute all of his costs to the misadventure of the missing documents. I note that he gave a special rate of $275.00 per hour which is less than the rate of $300.00 per hour charged by Ms.

Pisko, it is still excessive given we did not qualify him as an expert at the trial. Sunny Bhasin is claiming for 32 hours. [ 29 ] Therefore, the plaintiff is entitled to an award of some of his costs. 2. Quantification of the costs [ 30 ] I find that the amount for the extra work done by the expert, Ms. Pisko, is as she has stated it in her invoice dated May 26, 2011 in the amount of $1,512.00, and I award the plaintiff that amount. [ 31 ] With respect to the Bill of Costs prepared by Mr.

Asselin for his own work, and for the reasons set out above, I find that counsel’s fee in the amount of $5,977.13 is reasonable and I award that fee in thrown-away costs. [ 32 ] With respect to the bill submitted by Sunny Bhasin for the amount of $10,135.54, I do not find that he is entitled to the whole amount. I find that it is reasonable to award $2,500.00 and I do not award his travel costs. [ 33 ] I award a total of $9,990.00 (rounded up) in thrown-away costs to the plaintiff.

Conclusion [ 34 ] The defendants shall pay thrown-away costs in the amount of $9,990.00 to the plaintiff. Heard on the 26 th day of May, 2011. Dated at the City of Edmonton, Alberta this 21 st day of November, 2011. A.B. Moen J.C.Q.B.A. Appearances: Pierre Asselin for the Plaintiff James T. Nielsen Robert P. James Lana Jackson for the Defendants