Ma v Coyne, 2013 ABQB 426

Court of Queen ’ s Bench of Alberta Citation: Ma v Coyne, 2013 ABQB 426 Date: 20130809 Docket: 0901 18916, 0901 10602 Registry: Calgary Between: Action No.: 0901 18916 Jian Guang Ma, Guo Chi Ma and Mei Fang Ma Plaintiffs/Respondents - and - Delainey Lauren Coyne Defendant/Appellant And Between: Action No.: 0901 10602 Maggie YanYan Wen Plaintiff/Respondent - and - Karen L. Bader Defendant/Appellant Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________

Reasons for Judgment of the Honourable Madam Justice S.M. Bensler _______________________________________________________ I. Introduction [ 1 ] This is an appeal by the defendant insurer (the “Appellant”) from an assessment officer’s decision, which permitted translation expenses incurred before a Statement of Claim was filed. The plaintiffs in this appeal (the “Respondents”) were all plaintiffs in motor vehicle claims and are all Chinese immigrants to Canada. II.

Facts [ 2 ] This appeal concerns two separate court actions that the assessment officer heard together. [ 3 ] The Wen court action concerns a motor vehicle accident involving Maggie YanYan Wen, the plaintiff, that occurred on August 28, 2007. The Statement of Claim was filed on July 15, 2009. The parties reached an agreement on all matters except for the interpreter’s bill. On March 17, 2011, Ms. Wen received $7,234.33 as the result of a settlement agreement, less the interpreter’s bill. The bill of costs for translation services is $996.98.

Approximately $712 of these services were incurred before the Statement of Claim was filed. [ 4 ] Ms. Wen was born [...], 1973 in China, and immigrated to Canada in 2001. She is married with no children. Her mother tongue is Cantonese. [ 5 ] The Ma court action concerns a motor vehicle action involving Jian Guang Ma, Guo Chi Ma, and Mei Fang Ma, the plaintiffs, that occurred on December 17, 2007. The Statement of Claim was filed on December 16, 2009. The parties reached an agreement on all matters except for the interpreter’s bill.

On April 27, 2011, Jian Guang Ma, Guo Chi Ma and Mei Fang Ma received $5,194.01; $5,193.88; and $6,881.96, respectively. This excluded their claims for interpreter fees, which are $1,065.75, $982.80, and $983.33, respectively. Much of these services were incurred before the Statement of Claim was filed. [ 6 ] Mei Fang Ma and Guo Chi Ma are married, and Jian Guang Ma is their son. Mei Fang Ma was born [...], 1948 in China. Guo Chi Ma was born [...], 1944 in China. They immigrated to Canada in 1990. Jian Guang Ma was born [...], 1970 in China. He immigrated to Canada in 1989.

The Mas’ mother tongue is Cantonese. [ 7 ] In total, based on four separate invoices, the Respondents claimed $4,028.86 in translation services. [ 8 ] In early 2012, the Appellant served the Respondents in this action with appointments to have the Bill of Costs for translation services taxed. The assessment hearing was held on July 11, 2012. A. Assessment Officer ’s Decision [ 9 ] The assessment officer delivered his oral reasons during the hearing. He held that it would be possible to allow pre- commencement disbursements, including, where appropriate, translation services (see pp 52-54 of the transcript):

[...] I find Justice Mahoney’s analysis of Wortz to be quite compelling. And, secondly, as Mr. Boyle [counsel for the Plaintiffs/Respondents] has argued, there has been a wording change to what was rule 600. And I think it’s – 10.41 is – is more expansive. And, specifically, 10.41(2)(a), reasonable and proper costs of a party under sub-rule (1) include the reasonable and proper costs that a party incurred to bring an action. So I think there’s – there’s the – the distinction of the rule change.

And the – most recent case, the 2012 case, does seem to omit reference to the change in wording and reference to the reasoning of Justice Mahoney in – in the Davidson decision. So my conclusion would be that it is possible for an assessment officer to allow pre-commencement disbursements, including, where appropriate, translation services.

So I – in my view, that would take us to the point where now it’s down to just whether it was reasonable in the circumstances here. [...] [ 10 ] The assessment officer held that there was a lack of notice to the Respondents’ counsel prior to the assessment hearing that the Appellant would raise the issue of necessity; that the Respondents did not need a translator (see p 105 of the transcript): [...] With respect to the necessity, I’m going to afford more benefit of the doubt to the plaintiffs. Again, we’ve gone around and around on – on this aspect of how much specific notice Mr.

Boyle’s office had of the necessity argument, and I think there was plenty of notice on both sides with respect to the legal issue, but it’s not clear to me. I’m accepting Mr. Boyle’s expressed surprise this afternoon. There is no indication that he was clearly put on notice that the necessity issue was – was a fundamental point. [ 11 ] The assessment officer also addressed a procedural matter in deciding to proceed with submissions by counsel without adjourning proceedings and requiring affidavit evidence.

The assessment officer’s reasons are summarized below (pp 104-105 of the transcript): [...] I don’t know, I’m trying to be a bit practical about this; how much precedent value there would be in – in adjourning and going through a more complex process, with respect to the necessity issue regarding the level of English of individual plaintiffs, because there could be a lot of effort expended on determining the level of English of – of one particular. And perhaps some guidelines would come out of that, but it wouldn’t be wholly applicable to the next plaintiff that – of the next assessment.

So I’m – I don’t want to be unfair to – to either party, in terms of getting in their full case, but I’m hesitant to prolong these proceedings. I’m reminded of a story from a reliable source that in another jurisdiction outside this province, there was an assessment that took approximately three weeks. It was, I believe, longer than the original trial, and all of the experts that testified at the trial were called back and rehashed their submissions from the trial and their expertise, et cetera.

And I think in a – in a world where there is unlimited time, that that might be appropriate, but there has to be some attempt to keep this process reasonably

summary, although I failed obviously in that regard this afternoon. [ 12 ] The assessment officer allowed the translator’s fees as follows: (see p 112 of the transcript): [...] The – the terminal hourly rate of $95 an hour is – is a pretty significant rate. That’s counter-balanced quite a bit by the fact that Mr. Koh [the translator] does do brief attendances. There isn’t a minimum charge. The Ma bills aren’t quite as good an example because he’s apparently prorating. But in the Wen bill, when there’s just one plaintiff, there’s still a significant number of .1s, .2s, .3s.

So the time allocations for, especially, the shorter communications seem quite evenhanded to me, even at the $95 an hour rate. If he’s billing a .1, that’s $9.50; that’s less than a lot of legal assistants are – charging sometimes for some pretty routine work. The $45-an-hour rate, well, I’ve made some comments on that, to the effect that the manual may not be providing much of a service to the Bar in – in that regard, in terms of rates. I know there was an attempt to – to word it fairly loosely, that it’s a guideline that may

provide assistance. But I – I know people want predictability and consistency in part to avoid having to come to assessments, of course. But it is a – a 2008 regulation. I know I’ve allowed higher hourly rates in the past than $45 an hour. I think I find – I find $95 an hour excessive if there was two-or three-hour minimums. And – and I know Mr. Boyle says you have to acknowledge the marketplace, but sometimes everyone in the marketplace seems to be engaging in a practice that just doesn’t seem fair or reasonable. Here, Mr.

Koh isn’t applying the minimum, because there – there can be instances where all you need is – is a very brief use of – of a translator and – and somehow a two-or three-hour minimum just doesn’t – doesn’t seem appropriate. I don’t want to try to set any precedent for hourly rates. I – I think one has to look at the context and especially the use of – of time allocations.

I – not so much anymore now that rates for lawyers are all over the map, but I know years ago I used to get a lot of calls from lawyers inquiring – you know, given my seven years and three months of the Bar, exactly what hourly rate can I be charging.

And my response is one has to look at the rate and the way the time is allocated and just try to make some determination as to whether the end result seems reasonable. [ 13 ] Although the translator fees were allowed, some reductions were made as follows: (see p 115 of the transcript) [...] With respect to all of the issues but the one I’m about to get into I’m treating them all the – the same in terms of antic – the concepts of anticipated time, the rates.

But with Ma I think there should be some accommodation regarding the fact that we’ve got three family members apparently – and I appreciate there’s a dispute about the level of English, but – but apparently different levels of English between the son and the parents. The – the times cumulatively seem a bit on the high side. I’ve reference the – I think it was January 15th, ‘08, time of five hours. That’s the anticipated time; cumulatively I believe it’s three hours on the settlement. From my perspective, I just think there – there could have been greater efficiencies in dealing with the family unit.

I appreciate they’re all distinct individuals with different levels of English. I can accept – given the difference that – that I see between the Wen and the Ma bills, I – I’m inclined to accept that Mr. Koh, from his perspective, was being evenhanded in – in prorating because there – there’s more .1s on the individual Ma bills than – than on the one Wen bill. So I – my impression is he probably was taking, for instance, some .3s and allocating a .1 to each Ma file. So I’m not – I don’t want to take the point too far, but I think on the Ma matters there should be some accommodation in that regard.

Okay, So with respect to the Wen account, [...] it looks to me like there’s about 11.3 hours. And I hesitated about setting a rate, but I think – I mean there’s so many issues that could be subject to appeal here; it might be cleaner if I should state a rate. I’m looking at something that would approximately equate to $80 an hour, which would put it at approximately 900, I think – 904. so I’m just going to assess the – the fee portion at 900, and with GST that would be $945.

With Ma’s I mentioned I’m also looking at the economies of scale issue and – and what I’m going to do on – on those is just adjust the – the fees and the GST by – by 20 percent on each of them. So that would make a – a difference of about 187 to – 202.80, depending on which bill, plus GST. [...] [ 14 ] The assessment officer assessed the costs including GST for Jian to be $851.76, for Guo to be $786.24, and for Mei to be $786.67. The Wen account, including GST, was assessed at $945.00. III. Issues [ 15 ] The issues on appeal are as follows: 1.

Are disbursements for interpreter’s fees a recoverable cost if they were incurred prior to the commencement of the action?;

2. If interpreter’s fees are recoverable as a pre-commencement disbursement, was the assessment officer’s award of interpreter’sfees reasonable and proper in the circumstances? IV. Standard of Review [16] The new Alberta Rules of Court, Alta Reg 124/2010 [Rules of Court] have reformed terminology such as “taxing officer”.

InSweetgrass First Nation v Rath & Company, 2013 ABQB 165 [Sweetgrass First Nation], at paras 22 and 23, Justice Tilleman recognizedterminology changes in the Rules of Court while emphasizing the enduring significance of jurisprudence relating to the old Alberta Rulesof Court, Alta Reg 390/1968 [Old Rules]: Despite the new Rules, the old jurisprudence remains instructive.

The change in name from “taxing officer” under the old Alberta Rulesof Court, Alta Reg 390/1968 [Old Rules] to “review officer” under the new Rules is consistent with the goal of increasing usability andsimplifying complex language: Alberta Law Reform Institute, Rules of Court Project, Final Report No 95 (Edmonton: ALRI, 2008) atpara 9. In that report's rule concordance table, there is consistency that old rules regarding “taxation” concord with new rules regarding“review.” In Champagne v.

Sidorsky, 2012 ABQB 522 at para 26, 220 ACWS (3d) 708 [Champagne], Justice Jones found “that theterm ‘litigation representative’ under the Rules replaces and is inclusive of ‘next friend’ and ‘guardian ad litem’ under the Old Rules”.Likewise, I find that a “review officer” replaces a “taxing officer” and a “review” replaces a "taxation." In many instances this Court has turned to jurisprudence from the Old Rules to inform its

interpretation of the Rules.

Champagne is oneexample where Jones J, again at para 26, found the existing jurisprudence, "at the very least, highly influential." [emphasis in original] [17] As in Sweetgrass First Nation, I find that “assessment officer” in the new Rules of Court stems from “taxing officer” in theOld Rules and consequently, the standard of review for an “assessment officer” would be comparable to that of a “review officer” or a“taxing officer”. [18] In Fraser Milner Casgrain LLP v Kristof Financial Inc, 2012 ABQB 359, 541 AR 245, Justice Yamauchi summarized thestandard of review for “review officers” at paras 16-18: When one reviews the many cases that deal with appeals from decisions of review officers (or taxing officers, as they were formerlyknown), there are certain principles that emerge.

A review officer's decision is entitled to curial deference: 509703 at para 11. Why? Areview officer's “duties commonly call for him to do this type of vetting because of the nature of his position and the expertise that hegathers in carrying out those duties”: Carr & Co v. Markdale Ltd. (1996), (AB KB), 46 Alta LR (3d) 324 at para 20(QB) ["Carr & Company"]. See also McLennan Ross v. Mercantile Bank of Canada (1988), 1988 ABCA 224 , 59 Alta LR(2d) 369 at para 6 (CA) [“McLennan Ross”].

The Alberta Court of Appeal in McLennan Ross went on to say that, “the taxing officer'sfunction is a specialized one and he may have to bring his own experience and expertise to bear” (at para 12). Curial deference, however, is not absolute. A court hearing an appeal from a review officer's decision may interfere if the review officer“operated on a wrong principle and thereby fell into error”: McLennan Ross at para 6, citing Cape Breton Landowners v. StoraKopparbergs Bergslags Aktiebolag (1983), (NS CA), 33 CPC 1, 146 DLR (3d) 369, 58 NSR (2d) 193, 123 APR(NSCA); Petty v.

Bishop & McKenzie (1977), 2 AR 241 at 243 (QB). An error in principle may include a situation where the quantumthat the review officer awards is inordinately high or low: McLennan Ross ibid; 509703 at para 11. Similarly, a court hearing an appealfrom a review officer's decision may interfere if the review officer makes an error concerning the scope of the retainer agreement underwhich the parties are operating: Brown v. Snyder & Associates, 2004 ABQB 899 at para 20 ["Brown"].

Finally, a court hearing anappeal from a review officer's decision may find that the review officer made a finding of fact that is clearly in error: Carter v. Blake(1982), 41 AR 418 at para 7 (NWTCA) ["Carter"].

With respect to the latter point, a court hearing an appeal from a review officer's decision must exercise caution, and must not step too farinto arena of gathering evidence and weighing that evidence. ... [emphasis in original] [19] To summarize, the jurisprudence with respect to the standard of review for “taxing officer” continues to apply to “reviewofficers” and “assessment officers” as defined in the Rules of Court. Therefore, the standard of review for erroneous legal principlescontinues to be correctness while curial deference is applied where the standard of review is reasonableness.

[20] The first issue is whether the assessment officer applied an erroneous legal principle, so the standard of review is correctness. [21] With respect to the second issue of whether costs awarded were reasonable and proper in the circumstances, the standard ofreview is one of reasonableness and the assessment officer is entitled to curial deference. V. Issue 1 - Are disbursements for interpreter’s fees a recoverable cost if they were incurred prior to the commencement ofthe action? A.

Arguments [22] The Appellant submits that the assessment officer erred in principle in allowing pre-commencement costs given that there isbinding authority which directs the assessment officer otherwise.

The Appellant claims that Kha v Salhab, 2001 ABQB 44, 282 AR 324;Bow Island (Municipal District of) v Wortz (1921), (AB CA), 61 DLR 87 (ABCA) [Wortz]; Ukranian (Edmonton)Credit Union Ltd v 258753 Alberta Ltd, (1984) (AB KB), 60 AR 148, (ABQB); Millott Estate et al v Reinhard et al,2002 ABQB 998, 322 AR 307; Murphy Oil Co v Predator Corp, 2005 ABQB 134, 379 AR 389; 321665 Alberta Ltd v ExxonMobileCanada Ltd, 2012 ABQB 76 [ExxonMobile Canada Ltd], all stand for the proposition that costs incurred prior to the commencement of alaw suit are not taxable. [23] The Appellant claims that the assessment officer erred in following Davidson v Pattern, 2005 ABQB 521, 381 AR 6[Davidson] because it is inconsistent with existing decisions, and particularly with the Court of Appeal’s decision in Wortz.

The principleof stare decisis provides that the decision by the Court of Appeal to not allow pre-commencement costs should be followed. TheAppellant asserts that Justice Mahoney’s comments in Davidson with respect to pre-commencement costs were obiter. Davidson was ajudgment regarding pre-investigative reports rather than interpreter’s costs and therefore it should be distinguishable. [24] The Respondents take the position that the assessment officer correctly relied on Davidson.

In any event, the Respondentsassert that this court does not have to rely on Davidson to reach the same result, as the wording in the Rules of Court makes it very clearthat disbursements are payable before the commencements of the proceedings. B. Legislation [25] Rule 10.41 of the Rules of Court allow an assessment officer to determine whether costs are reasonable and proper. This Rulestates: 10.41(1) Subject to an order, if any, an assessment officer may, with respect to an assessment of costs payable, determine whether thecosts that a party incurred to (

a) file an application, (

b) take proceedings, (

c) carry on an action, or (

d) participate in an action, application or proceeding,

are reasonable and proper costs.

(2) Reasonable and proper costs of a party under subrule (1) (

a) include the reasonable and proper costs that a party incurred to bring an action, (

b) unless the Court otherwise orders, include costs that a party incurred in an assessment of costs before the Court, (

c) unless the Court or an assessment officer otherwise directs, include costs that a party incurred in an assessment of costs before an assessment officer, (

d) do not include costs related to a dispute resolution process described in rule 4.16 or a judicial dispute resolution process under an arrangement described in rule 4.18 unless a party engages in serious misconduct in the course of the dispute resolution process or the judicial dispute resolution process, and (

e) do not include, unless the Court otherwise orders, the fees and other charges of an expert for an investigation or inquiry, or the fees and other charges of an expert for assisting in the conduct of a

summary trial or a trial. [ 26 ] The language in the Rules of Court was revised from the Old Rules and through this process, the phrase “to file an application” was added. This addition expands upon the authority of an assessment officer in determining whether costs incurred are reasonable and proper. [ 27 ] “To file an application” would include reasonable steps that lead up to the filing of the application which could include pre- commencement translation costs.

The Court of Appeal’s decision in Wortz is distinguishable by the change in the language of the Rules of Court . [ 28 ] When reviewed on a standard of correctness, the assessment officer applied the correct legal principal in allowing pre- commencement translation costs. This portion of the appeal is dismissed. VI. Issue 2 - Was the assessment officer ’s award of interpreter ’s fees reasonable and proper in the circumstances? [ 29 ] The Appellant submits that the assessment officer erred in principle in concluding that the interpreter’s services were necessary and reasonable in the circumstances.

In both the Wen and Ma matters, the Appellant submits that the party seeking to recover costs ought to bear the burden of establishing that they were reasonable and necessary to incur. The crux of the Appellant’s argument rests on whether the

interpretation services were truly necessary. [ 30 ] In addition to necessity, the Appellant raises a number of other arguments in regards to whether all or portions of the interpreter fees were reasonable and proper in the circumstances. Each argument will be addressed in succession below. A. Necessity [ 31 ] The issue regarding whether a translator was necessary arose at the assessment hearing in a number of forms. As a procedural matter, the Respondents claim that the Appellant did not notify them about the issue of necessity prior to the hearing.

The Appellant claims that the Respondents were aware of the issue. Ultimately, the assessment officer was satisfied that the Respondents had no prior

notice with respect to the issue of necessity. [32] At the time of the hearing, neither party had submitted affidavit evidence regarding the need for a translator. The Appellantrequested an adjournment of the assessment hearing to submit affidavit evidence to support their position that an interpreter was notnecessary. The assessment officer chose to proceed without affidavit evidence. The assessment officer rendered his decision, choosingnot to adjourn the proceedings.

He concluded that affidavit evidence would not be determinative of his decision. [33] The Appellant provides a number of submissions to establish their position that the use of an interpreter was not necessary inboth the Wen and Ma matters. The Appellant relies on evidence of the insurer’s interactions with the Respondents. As well, theAppellant advances arguments based on physician’s reports which comment on the Respondents’ language proficiency. [34] In regards to the Ma case, the Appellant challenges necessity on the basis that where the Ma’s son attended with his parents,necessity is not established.

It is claimed that the Ma’s son could have translated for his parents. [35] Furthermore, the Appellant questions the necessity of a translator during the Respondents interactions with their counsel. It isalleged that the Respondents’ firm had competent counsel fluent in both Mandarin and Cantonese on their firm roster. If multilingualcounsel were used, then the use of an interpreter would not be necessary. [36] The Respondents submit that their onus in demonstrating the necessity and reasonableness of the expenses claimed weredischarged by completing and filing a bill of costs.

This bill of costs contained an itemized list of the services provided, dates the serviceswere provided, and the length of time spent providing those services. [37] In response to the Appellant’s particular submissions, the Respondents submit that the individual Respondents hadrudimentary language skills and therefore an interpreter was necessary to explain legal concepts.

Furthermore, the Respondents state thatat the time, there were many complex changes in the state of personal injury law that had to be communicated to the Respondents. [38] In regards to the Appellant’s claim that the Respondents’ firm had competent counsel capable of speaking Cantonese andMandarin, the Respondents submit that people have access to their choice of counsel and that there is no authority that people who speakanother language should go to lawyers who speak that language. [39] With regards to the Ma’s son translating for his parents, the Respondents state that while the son’s language skills were betterthan his parents, they were still rudimentary.

Furthermore, it was argued that the Ma’s son was under no obligation to volunteer his timeand may have had a different agenda than his parents. As well, the elder Ma’s are entitled to direct contact with their solicitor. [40] On this appeal, the Appellant referenced ExxonMobil Canada Ltd in particular, stating that even if pre-commencement costsare taxable, evidence is required to justify the necessity and reasonableness of the expense claimed. This was stated by Justice Belzil atpara 49: However, the general prohibition against claiming pre-action investigative costs is not absolute.

Sidorsky v CFCN Communications Ltd.1997 ABCA 280 , [1997] A.J. No. 880 involved a defamation action. The Alberta Court of Appeal, while recognizing thepossibility of advancing a claim for the costs of investigation, reduced an award of $200,000 made by the trial judge to $10,000 as thesuccessful party failed to call any evidence to justify the necessity and reasonableness of the expense claimed. [41] The Respondents do not take issue with the Appellant’s submission but submit that their onus is discharged by completingand filing a bill of costs.

A bill of costs does not discharge the onus of justifying the necessity and reasonableness of a pre-commencement expense. This is evidence that work was completed, not whether it was required or necessary. This distinction was madeby the Alberta Court of Appeal in Sidorsky v CFCN Communications Ltd, 1998 ABCA 127, 216 AR 151, para 3:

[...] We were advised by counsel that there were voluminous documents before the trial judge indicating the work that had been done by the investigator in tracking and interviewing witnesses. While it is true that we did not see this evidence, we accept that it existed. When we spoke of a lack of evidence, the issue was not whether the work was done, but whether there was any testimony that this work was required to be done by an investigator.

We were advised that there was no direct evidence as to the necessity of hiring an investigator to do the work. [emphasis in original] [ 42 ] However, this does not conclude the matter. The Court of Appeal, as stated in the above quote, in Sidorsky v CFCN Communications Ltd , 1997 ABCA 280 , 206 AR 382, [ Sidorsky 1997 ] reduced the investigatory fee. They found this reduction was justified on grounds that there was a lack of evidence as to the necessity and reasonableness of the cost. However, the investigatory fee was reduced, not eliminated completely.

At para 44, the Court of Appeal states: [...] A $200,000 award represents a significant sum. While judges must often, for practicable purposes, award disbursements on the basis of counsel's representations, when the award is of this magnitude it should not be awarded without evidence as to its necessity and reasonableness. [...] [ 43 ] Consequently, it would seem that the circumstances in which costs are incurred, including the nature and relative quantum of costs will be relevant in determining the necessity and reasonableness of cost.

As acknowledged in Sidorsky 1997 , judges maintain some discretion in their award of disbursements. [ 44 ] The residual discretion of taxation officers as they were previously known has also been acknowledged in Watts Estate v Kuress Consultants Alberta Inc , 2001 ABCA 207 at para 4 : The successful respondent will of course also recover reasonable disbursements. We do not wish a repetition of the extreme difficulty experienced earlier in taxing the disbursements in the Surrogate Court or the Court of Queen's Bench in this and related litigation.

Therefore, we direct that whoever taxes these costs may dispense with vouchers or sworn proof of any disbursements which are: (

a) comparatively small, or (

b) appear to the taxing officer to be reasonable, in light of common practice, or his or her other experience. [ 45 ] When reviewed on a standard of reasonableness, the assessment officer’s decision is entitled to curial deference. In light of the assessment officer’s experience and judgment, and in the interests of judicial economy, it was reasonable for the assessment officer to proceed with the hearing. After hearing the submissions of counsel, it was reasonable for the assessment officer to rule that the interpreter costs met the requisite threshold for necessity.

Case law from the Court of Appeal suggests that both judges and taxation officers, as they were formerly known, have the ability to exercise some discretion in their award of disbursements. B. Accident Benefit Claim and Property Claim Insurance [ 46 ] The Appellant submits that translator costs for assistance with the completion of the accident benefit claim (Section B claim) and property claim (Section C claim) are not the obligation of the third party liability insurer in these circumstances.

Furthermore, it was submitted that neither were pleaded in the Statement of Claim. [ 47 ] The Appellant takes the position that accident benefit claims and property claims are separate and apart from the third party liability claims and costs should not be awarded for these other claims. [ 48 ] As well, the Appellant alleges that the Respondents’ firm is billing for translation disbursements in regards to

Section B claims even though there is evidence to suggest that they do not assist their clients with completing the necessary forms for

Section B claims. The Appellant provided a letter to support this argument. However, as this is an appeal on the record, I am unable to consider additional evidence that was not provided to the assessment officer at the hearing.

[ 49 ] The Respondents derive an alternate position claiming that there is a set-off. They assert that the Appellant third party insurer is able to deduct the accident benefit claim amount whether it is claimed or not. As a consequence of this deduction, they submit that the legislation allows the third party to set-off any amounts received from

Section B or which could have been received from

Section B. It is argued that due to this ability for the third party to set off costs, there is linkage between the claims. [ 50 ]

Section 570 of the Insurance Act , RSA 2000, c I-3, does provide a mechanism to prevent double recovery. In the decision of Chisholm v Lindsay , 2012 ABQB 349 , 67 Alta LR (5th) 233, Justice Kenny refers to

Section B benefits in obiter while addressing s 626.1 of the Insurance Act , RSA 2000 c I-3, which is now s 570 of the Insurance Act at para 11: This amendment again is to deal with the issue of double recovery. If the claimant has a policy which covers a portion of the expenses, then they cannot be compensated again for that payment. This is akin to

Section B benefits which are deducted from any award for the same benefit already covered by

Section B. [...] [ 51 ] However, the current issue does not concern the

Section B benefit itself. Rather, the issue is whether interpreter fees for the completion of forms to obtain accident benefit claims and property claims are an appropriate disbursement. [ 52 ] Concerning the set off argument, interpreter fees in completing forms for obtaining benefits from

Section B are separate from the

Section B benefits. These interpreters fees may qualify as a separate head of damages, however, they are not an eligible disbursement in this action. [ 53 ] Furthermore, with respect to the accident benefit claims, the party responsible for payment is addressed by legislation. The Automobile Accident Insurance Benefits Regulations , Alta Reg 352/1972 under Special Provisions,

Definitions, and Exclusions of

Section B at

section 3.2 states the following: Responsibility for Expenses Related to Completion of Claim Form - The Insurer shall pay all expenses incurred by or on behalf of the insured person in completing the medical report portion of the prescribed claim form. [ 54 ] The legislation is specific in stating that the

Section B insurer is required to incur expenses for completing the medical report portion of the claim form, not the entire claim form. [ 55 ] The legislation does not appear to address the non-medical report portion of the accident benefit claim form. Therefore, the responsibility in completing the remainder of the accident benefit claim form and the property claim form appears to lie with the individual plaintiffs. [ 56 ] Again, the interpreter fees for the completion of accident benefit claim and property claim forms are not directly related to the current action, although it is closely connected.

Where the need for an interpreter arises, this may give rise to a separate head of special damages against the third party insurer. However, these were not pleaded and now cannot be characterized as a disbursement to this action. [ 57 ] The interpreter fees to assist in completing forms not directly related to the current action were inappropriately categorized as a disbursement and therefore these costs are not within the authority of the assessment officer.

Consequently, the assessment officer made a palpable error in awarding interpreter costs for the completion of forms that relate to the accident benefit claim and property claim. These expenses are not permitted and this portion of the assessment officer’s ruling is overturned on this appeal. C. Anticipated Costs

[ 58 ] The Appellant submits that allowing costs for anticipated interpreter services was a palpable error. Their position is that disbursements normally indicate that the expense has been incurred. The Appellant also advances a secondary argument which raises the issue of their ability to verify whether the anticipated services were actually performed or not. [ 59 ] At the assessment hearing, the Respondents stated that a bill was provided for taxation purposes.

The issue of the interpreter fees had prevented the Respondents from concluding the matters and consequently another meeting between the Respondents’ firm and their clients was anticipated. This final meeting, which would take place after the issue of interpreter fees is concluded would require additional interpreter services which resulted in the invoice for anticipated costs. [ 60 ] The assessment officer allowed anticipated costs in this case with the caveat that they seemed reasonable. The costs were set at a relatively reasonable rate and time.

The justification for this decision was that it would be more practical than obtaining supplemental or updated bills. For example, the assessment officer stated that an hour to conclude a settlement process did not appear to be out of line. [ 61 ] I agree that it would be practical to allow anticipated costs for interpreters, so long as the anticipated costs were reasonable in the circumstances.

Where reasonable and necessary, this would seem to be a more efficient and practical process than obtaining and submitting an updated Bill of Costs. [ 62 ] However, Rule 10.41(1) states that “[...] an assessment officer may, with respect to an assessment of costs payable, determine whether the costs that a party incurred [...] are reasonable and proper.” [emphasis added] The operative word in the new Rules of Court is the word “incurred”. At the time of the assessment hearing, the anticipated interpreter costs had not yet been incurred although they were likely to be incurred.

Consequently, although the approach taken by the assessment officer was practical, I find the assessment officer made a palpable error in allowing anticipated costs given my reading of Rule 10.41(1). The appeal is successful in this regard, the costs for anticipated interpreter services are not allowed. D. Interpreter Costs Generally [ 63 ] The Appellant submits that even if pre-commencement interpreter’s fees can be allowed, the fees charged in these actions were excessive.

The Appellant relies on the Court of Queen’s Bench Costs Manual, available on the Court of Queen’s Bench website, which states that an interpreter’s fees are set at $45.00 per hour in the manual and that the rates set by the assessment officer at $80 per hour is excessive. [ 64 ] The Respondents submit that the interpreter’s fees set by the assessment officer at $80 per hour is not excessive. It may seem excessive but the interpreter retained billed for as little as a tenth of an hour while other translators had minimum time requirements.

Furthermore, the translator used was available on an ad hoc basis, 24-hours a day. [ 65 ] The Respondents also refer to s 14 of the Canadian Charter of Rights and Freedoms . They take the position that this

section speaks to the primacy of the right to have an interpreter to aid in legal proceedings. The Appellant maintains that the Charter is between the government and its citizens and this claim is between two individual private citizens. In addition, the Appellant suggests that other requirements such as notice must be met.

In RWDSU, Local 558 v Pepsi-Cola Canada Beverages (West) Ltd , 2002 SCC 8 , [2002] 1 SCR 156, the Supreme Court of Canada stated that while the common law develops in accordance with the principles of the Charter rather than in isolation, where there is no governmental action the Charter will generally not be applied. [ 66 ] This present case is between two private parties. The issues in this appeal are with respect to whether pre-commencement interpreter fees are allowable disbursements and whether the interpreter fees in this particular case were reasonable and proper.

There is no over riding public interest or governmental action that has been engaged in this particular appeal. These litigants were not deprived of their right to the assistance of an interpreter. While the Charter may guide the development of the common law, it does not directly affect the parties in this particular appeal. [ 67 ] A review of the transcript of the assessment officer reveals that the assessment officer balanced the higher hourly rate of the translator with his practice of billing in smaller increments.

[ 68 ] In regards to the Wen account the assessment officer set a rate at approximately $80 an hour. In regards to the Ma accounts the officer made a global adjustment by reducing the cost of the interpreter by 20 percent. [ 69 ] The standard of review for the assessment officer’s decision is one of reasonableness. The assessment officer is entitled to curial deference. Given this standard of review, the assessment officer’s decision is not unreasonable. The higher rates were mitigated by the interpreter’s practice of billing in smaller increments.

The adjustments made by the assessment officer with respect to the Wen and Ma accounts in terms of their hourly rate and global adjustment will remain. VII. Conclusion [ 70 ] To summarize, with respect to the first issue, pre-commencement interpreter’s fees are a recoverable disbursement that is within an assessment officer’s authority to award. Therefore, when reviewed on a standard of correctness, the first issue is dismissed. [ 71 ] With respect to the second issue, when reviewed on a standard of curial deference, I find various disbursements awarded by the assessment officer were palpable errors.

In particular, the award of costs for interpreter fees relating to the completion of insurance claim forms and anticipated interpreter costs are disallowed. [ 72 ] After careful review on a standard of curial deference, the remainder of the costs that were determined by the assessment officer remain unchanged. The rates and adjustments that were made in regards to the Wen and Ma accounts remain at the rate of $80 per hour but are reduced by 20 percent respectively. [ 73 ] This appeal of the assessment officer’s decision resulted in mixed success. As a result each party will bear their own costs.

Heard on the 6 th day of February, 2013. Dated at Calgary, Alberta this 9 th day of August, 2013. S.M. Bensler J.C.Q.B.A. Appearances: Timothy J. Boyle, Spier Harben for the Plaintiffs/Respondents Jian Guang Ma, Guo Chi Ma, Mei Fang Ma and Maggie YanYan Wen

Lorena Sutherland, Alberta Motor Association for the Defendants/Appellants Delainey Lauren Coyne and Karen L. Bader