Mollaei v. Luo, 2015 BCSC 1143

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Mollaei v. Luo, 2015 BCSC 1143 Date: 20150702 Docket: M113664 Registry: Vancouver Between: Forouzan Mollaei Plaintiff And Yun Que Luo and Karl Heinz Koehler Defendants - and - Docket: M127039 Registry: Vancouver Between: Forouzan Mollaei Plaintiff And Ronald C. Holloway and Barry G. Holloway Defendants Before: Master Scarth (as Registrar) Reasons for Decision Counsel for the Plaintiff: L.E. Kancs Counsel for the Defendants: A. Meade Place and Date of Hearing: Vancouver, B.C. November 10, 2014 April 15, 2015 Place and Date of Judgment: Vancouver, B.C.

July 2, 2015 [ 1 ] This is an assessment of costs of the plaintiff following the settlement of two personal injury actions. I. BACKGROUND [ 2 ] The plaintiff is 50 years old. She was born in Iran and moved to Canada in 1999 with her husband. She now lives in Coquitlam with her husband and 13-year-old son. [ 3 ] The plaintiff was involved in three car accidents which are the subject of these two actions: December 8, 2009 and December 22, 2009 (M113664); and March 27, 2012 (M127039). Liability for all three accidents was admitted by the defendants.

By way of a consent order filed March 21, 2013, the two actions were set down to be heard together at trial. [ 4 ] The defendants conducted an examination for discovery of the plaintiff on March 14, 2013. The discovery lasted approximately three hours. [ 5 ] A trial of this matter was set to proceed on May 26, 2014 for ten days. The issues for trial included: (

a) non-pecuniary damages;

(

b) past income loss; (

c) loss of future earning capacity; (

d) cost of care; (

e) special damages; (

f) in trust claim; and (

g) loss of housekeeping capacity. [ 6 ] The parties attended mediation on March 18, 2014 but were unable to arrive at a settlement. The most contentious area was the plaintiff’s claim for past income loss and loss of future earning capacity. [ 7 ] Discussions continued towards settlement. The plaintiff’s claims were settled on April 23, 2014 for $130,000 plus costs and disbursements as agreed or as assessed. The plaintiff filed an appointment for the assessment of her bill of costs on August 18, 2014. [ 8 ] The matters of issue on this assessment are as follows: (

a) tariff items 1, 2 and 6; and (

b) various disbursements, including fees for 7 of the 12 expert reports. II. TARIFF ITEMS [ 9 ] The registrar is to allow tariff fees with respect to work that was proper or reasonably necessary to the proceeding: Rule 14- 1(2). In fixing the number of units for items where a range is set out in the tariff, the registrar is to allow: (

a) the minimum units for matters upon which little time should ordinarily have been spent; and (

b) the maximum units for matters upon which a great deal of time should ordinarily have been spent: Appendix B, s. 3(3).

The onus is on the plaintiff to establish that the units claimed are appropriate. [ 10 ] In relation to all three tariff items in dispute, I have taken into account the fact that the units claimed are not just for one action, but for two actions, combined. 1) Tariff Item 1 [ 11 ] The plaintiff seeks 10 units under item 1, on the basis that the proceeding involved three motor vehicle accidents (3 units for each accident -- which would actually work out to 9 units, not 10 as claimed), and that it was necessary to meet with the client to take instructions on each of the accidents. [ 12 ] The defendants submit that 5 units would be appropriate given that the evidence of Mr.

Kancs suggests an average amount of pre-litigation activity -- two meetings and a telephone discussion prior to commencing the first action, and one meeting prior to commencing the second action in relation to the third accident. [ 13 ] I allow 7 units, taking into account the need to obtain instructions on each accident, as the plaintiff submits. 2) Tariff Item 2 [ 14 ] The plaintiff claims 20 units, in a range of 1 to 30; the defendants submit that 15 units would be appropriate. [ 15 ] In the absence of evidence as to the amount of correspondence and conferences, investigations and negotiations which the actions involved, I accept the submissions of the defendants and allow 15 units. 3) Tariff Item 6 [ 16 ] The plaintiff claims 8 units; the defendants offer 5 units. [ 17 ] I was not directed to anything particularly complex or time-consuming about the preparation of the pleadings in these actions.

I allow 6 units -- 3 for each action. III. DISBURSEMENTS [ 18 ] The principles to be applied by the registrar when assessing disbursements were summarized by Master MacNaughton in Turner v. Whittaker, 2013 BCSC 712 at para. 5 : [5] Counsel were also able to agree on the following legal principles which are applicable on an assessment of disbursements: 1. Rule 14-1(5) requires an assessing officer to determine which disbursements were necessarily or properly incurred in the conduct of a proceeding and to allow a reasonable amount for those disbursements.

2. The consideration of whether a disbursement was necessarily or properly incurred is case-and circumstance-specific and musttake into account proportionality under Rule 1-3. (Fairchild v. British Columbia (Vancouver Coastal Health Authority), 2012 BCSC1207). 3. The time for assessing whether a disbursement was necessarily or properly incurred is when the disbursement was incurred notwith the benefit of hindsight. (Van Dael v. Van Dael, (BC SC), 56 B.C.L.R. 176 (SC) rev’d (BC CA),56 B.C.L.R. 178 at para. 4 (CA)) 4.

A necessary disbursement is one which is essential to conduct litigation; a proper one is one which is not necessary but isreasonably incurred for the purposes of the proceeding. (McKenzie v. Darke, 2003 BCSC 138, para. 17-18) 5. The role of an assessing officer is not to second guess a competent counsel doing a competent job solely because other counselmight have handled the matter differently. (McKenzie v. Darke, 2003 BCSC 138, para. 21) [19] I have applied the above principles in arriving at the decisions which follow. 1)

Part 7 Filing Fee [20] Relying on the decision of Registrar Sainty in Park v. Koepke, 2013 BCSC 1806, the plaintiff claims the fee for commencingthe

Part 7 action on the basis that it is an adjunct to the tort litigation. The defendants submit that this is not a proper disbursement in atort action. [21] In Tomas v. Mackie, 2015 BCSC 364, District Registrar Nielsen concluded, having reviewed recent appellate authority, that theexpense for the

Part 7 notice of civil claim was not “incurred in the conduct of the proceeding”, as it did not relate directly to thedirection, management or control of the litigation used to prove a claim against the defendants in the tort action. Accordingly hedisallowed the filing fee for the

Part 7 proceeding [22] In my view, applying the reasoning in Tomas, the

Part 7 fee is not allowable on this assessment. 2) Report of Dr. Shuckett dated January 30, 2012 [23] This was the second report of Dr. Shuckett, a rheumatologist, the first report being August 24, 2011. The plaintiff says that thesecond report was necessary to update the first and was obtained for the purposes of both the

Part 7 and the tort claim. The defendantstake the position that the second report was not necessary due to the opinions already provided by Dr. Shuckett in her first report, as wellas those of Dr. Paramonoff (December 9, 2011) and Dr. Riar (January 25, 2012). Dr. Shuckett had already opined on the plaintiff’scondition and had recommended that she be seen 12 months later.

Instead, the plaintiff was examined again for purposes of a secondreport within five months of the first. [24] It appears from the plaintiff’s own submission and the timing of the second report, that it was obtained to address the questionof whether the plaintiff required physiotherapy treatments, something which had not been specifically addressed by Dr. Shuckett in herfirst report. Such an opinion was for the purposes of

Part 7 reimbursement, and the relevance to the tort claim is tangential. In thecircumstances, the plaintiff has not established that this second report was a proper or necessary disbursement in this proceeding. Iconclude that the fees associated with Dr. Shuckett’s second report should not be allowed. 3) Report of Dr. Paramonoff dated December 9, 2012 [25] Dr. Paramonoff is a physiatrist. In August 2011, plaintiff’s counsel made an appointment for the plaintiff with Dr. Paramonoff.The appointment was booked for some time in November. In October 2011 the plaintiff closed her daycare.

The plaintiff submits that itwas appropriate to maintain the appointment with Dr. Paramonoff on the basis that she could address the business closure. Thedefendants submit that the December report of Dr. Paramonoff is not necessary given the timing and content of the two reports ofDr. Shuckett. The plaintiff was seen again by Dr. Paramonoff for purposes of his May 15, 2013 report, the fees for which are concededby the defendants. [26] To disallow the fees for the first report would, in my view, be to second guess Mr.

Kancs’ decision to obtain an opinionaddressing the closure of the plaintiff’s daycare business, an important element in her tort claim. Accordingly, the fees associated withDr. Paramonoff’s December 9, 2011 report are allowed. 4) Reports of Dr. Kamyab dated October 11, 2011 and March 7, 2012 [27] Dr. Kamyab was the plaintiff’s family doctor until March 2014 when she closed her practice and moved to Florida. Theplaintiff submits that it was necessary to get a report from Dr. Kamyab in October 2011 in order to provide information to the adjusteralong with a request for funding.

The plaintiff submits that the report, as well as dealing with

Part 7 claims, provides a diagnosis, reviewsDr. Shuckett’s report, and addresses the issue of mitigation of damages, specifically the plaintiff’s failure to undergo physical therapytreatments. [28] The defence position is that both this October 11, 2011 report and the subsequent report of Dr. Kamyab of March 7, 2012 wereordered by the plaintiff to obtain comments on the reports of the specialists, Dr. Shuckett and Dr. Paramonoff. The defence submits thatin each report, Dr. Kamyab provides no information or opinion that differs from that of the specialists. The submission is thatDr.

Kamyab could have commented on the specialists’ reports at such time as she authored her full medical/legal report (ultimately onMarch 11, 2013). The defence cites the decision of Registrar Sainty in Jaid v. Chavez, 2013 BCSC 2329, at para. 46, in which thelearned registrar comments on a disbursement for a general practitioner’s fee in preparing a report commenting on other experts’ reports:

I do not agree with Mr. Kancs’ submissions that these reports were “necessary”. They were ordered to substantiate the opinions of other experts involved in this matter and to attempt to bolster the plaintiff’s claims. In my view, it was neither necessary nor proper to obtain Dr. Parhar’s opinion on the reports of other experts. While it may have been of some assistance to counsel, each of the other expert’s reports stands on its own. Having Dr. Parhar opine on them was overzealous and extravagant.

Accordingly I disallow the costs of these additional reports. [ 29 ] For the reasons set out in Jaid , the fees of Dr. Kamyab associated with her reports of October 2011 and March 7, 2012 are disallowed. 5) Report of Dr. Kamyab dated March 11, 2013 [ 30 ] No issue is taken with the necessity of this report, however, the fee of $3,034 is at issue. [ 31 ] The plaintiff submits that the fee of $1,602 set out in the BCMA tariff for such a report is only a guide. The submission is that the report is extensive, and covers improvement over time, medication, and treatment.

There is an extensive review of clinicals from 2009 forward as well as reference to reports from other doctors. The fee is made up of a charge of $1,602 for the report, and $1,432 for the time taken to review the file. This is reasonable, the plaintiff submits, because the doctor’s file was extensive. [ 32 ] The defence submits that the charge for four additional hours over and above the BCMA guideline amount is not reasonable given that the doctor was only reviewing her own chart. [ 33 ] It is fair to conclude from a review of Dr.

Kamyab’s March 11, 2013 report that the review and the preparation of the report overlap. The format of the report is a line-by-line recital of the doctor’s notes. This takes up 27 pages of the 30-page report. The diagnosis and prognosis occupy just over a page. In my view, in the circumstances, the additional charge of $1,432 has not been justified. This being the case, I fall back on the BCMA tariff and allow $1,602 for Dr. Kamyab’s March 11, 2013 report. 6) Report of Dr. Riar dated June 17, 2013 [ 34 ] Dr. Riar is a psychiatrist. This was his second report.

The defence takes no issue with the necessity of the first report dated January 25, 2012. The fee for the June 2013 report is $4,000. The defendants take issue with the necessity of this report and with the fee. [ 35 ] The plaintiff submits, that while the first report dealt with the first two car accidents, the second report was obtained to provide an assessment following the third car accident on March 27, 2012. It is the submission of plaintiff’s counsel that it would have amounted to “potential negligence” not to have ordered an updated report from Dr. Riar under the circumstances. In addition, Dr.

Riar was able to provide an update of the plaintiff’s psychiatric condition between his first assessment on December 14, 2011 and the assessment on May 8, 2013. The fact that there may be “nothing new” in the report does not lead to a conclusion that the report was not necessary or proper. [ 36 ] It is the defendants’ submission that the second report provides the same diagnosis and the same recommendations as the first report. In the 2012 report, based on the December 2011 assessment, Dr. Riar recommends treatment, but this recommendation was not followed.

There is no change in the diagnosis or the prognosis provided in the second report; it simply reiterates the previous findings. [ 37 ] As to the reasonableness of the fee, the defendants queried why, given that the opinions were the same in the first report and the second, the second report is more expensive by $550. The defendants did retain a psychiatrist (Dr. Axler) but did not order his report, and therefore it is not available as a comparable. The defence position is that the comparable is available in the form of Dr. Riar’s first fee. [ 38 ] Plaintiff’s counsel, Mr.

Kancs, was successful before Registrar Sainty in Jaid in claiming the cost of a second and third report by Dr. Riar. The learned registrar stated, at para. 65: [N]o doubt it was imperative in establishing the plaintiff’s case to prove what psychological impact the second and then the third accidents had on his recovery and prognosis.

That information would have been invaluable to the trier of fact had the matter proceeded to trial and, in addition, to establishing the plaintiff’s non-pecuniary damages given that many of the plaintiff’s claims rested upon aggravated symptoms and issues of anxiety and mild depression. Registrar Sainty also approved the amount of the fees, but it appears that Dr. Riar charged the same amount for each report ($3,250). [ 39 ] In the circumstances here, it was appropriate, as Registrar Sainty held in Jaid , to obtain a second opinion from Dr. Riar following a subsequent accident.

However, given the lack of explanation for the $4,000 fee for the second report, it is appropriate to allow $3,450, the same fee as was charged for the first report. 7) Report of Dr. Hamm dated February 18, 2014 [ 40 ] Plaintiff’s counsel retained Dr. Hamm, an occupational medicine doctor, to address the issues of past and future loss of earning capacity, including whether the plaintiff could reopen her daycare business in some fashion in the future, and, if so, to what extent. Plaintiff’s counsel stated that he also requested that Dr.

Hamm provide an opinion as to whether it was reasonable for the plaintiff to have closed down her business when she did (October 2011) and not to have reopened it by the time of trial. [ 41 ] The plaintiff submitted that: Rather than simply obtaining an FCE report which would only assess Ms. Mollaei’s ability to physically perform various functions on the day of the assessment, I opted for an assessment by an occupational medicine doctor (Dr. Hamm) for a much more qualified assessment of Ms.

Mollaei’s abilities, not only to date, but in the future in terms of potentially reopening a daycare business and her ability to function as a “hands-on” person who could actually work at the daycare, rather than act as a “supervisory role”, having others

to do the more physical work for her. [ 42 ] The invoice presented on this assessment for Dr. Hamm totals $5,965.91 and includes a “base” fee of $2,730 for the medical/legal report, $1,820 for two hours of dictation and two hours of editing the report, and $910 for two hours of reviewing documents. [ 43 ] It is the defence submission that Dr. Hamm deals with the issues of diagnosis and causation which were already addressed by other specialists. The submission is that only 9 of the 37 questions posed to Dr. Hamm relate to vocational abilities.

The further submission is that given that the plaintiff’s main issue was psychological, (based on the Dr. Riar opinion), it was unnecessary to get an opinion on the plaintiff’s physical abilities. Overall, the defence submission is that the report was more extensive than necessary and that, if anything is allowed for the report, it should be a reduced fee to allow only the amount required for a functional assessment.

The suggestion is a reduction of 50%. [ 44 ] In circumstances where the plaintiff was claiming that she was unable to continue with her chosen employment of operating a daycare business as a result of the motor vehicle accidents, it is fair to conclude that it was necessary or proper for counsel to retain an occupational medicine specialist. Dr. Hamm’s assessment appears to have involved a three-hour interview with Ms. Mollaei, and a review of the reports of the various specialists reports provided to him, including those of Drs. Riar, Paramonoff and Shuckett. Dr. Hamm concludes that: I think that Ms.

Mollaei will be limited with respect to fulfilling job duties associated with daycare activities in terms of her tolerance for forceful or repetitive bending, lifting, or reaching and with prolonged postures. Some job duties that will be adversely affected include her ability to pick up and place children in chairs, car seats, strollers, tricycles, large toys, etc. [ 45 ] Dr. Hamm recommends that Ms. Mollaei attend a multi-disciplinary pain management program to help her cope with her chronic pain and give her strategy to deal with it more effectively. Dr.

Hamm defers to his “specialist colleagues” as to whether surgery is a future option and whether she will be able to completely resume her normal job duties after convalescence from such surgery. [ 46 ] The fee charged by Dr. Hamm includes a 34% fee from Ultima Health Assessments who provide a booking service, make travel arrangements for the specialist, provide office space and support staff, provide transcription services and preparation of the medical/legal report. The defendants do not take issue with the Ultima portion of the fee.

Their submission is that given the content of the report the fee should be reduced by as much as half. Additionally they note that Dr. Hamm’s evidence as to time spent on the report results in an hourly rate of $910 as against the standard of $455 an hour. [ 47 ] I accept the submissions of the defence that the breakdown of Dr. Hamm’s fee suggests an hourly rate of approximately double the $455 an hour referenced in his invoices, even when the Ultima Health Assessment fee is taken into account.

Some reduction is warranted as a result, and I will allow $4,300 before GST, deducting approximately half of the fee for the base report. 8) Report of Mr. Jeff Matthews dated March 3, 2013 [ 48 ] Mr. Matthews is a chartered accountant who provided an independent estimate of the past loss of income incurred by Ms. Mollaei as a result of injuries she sustained in the three motor vehicle accidents. Mr. Matthews is employed by Blair Mackay Mynett Valuations Inc. and works with Mr. Rob Mackay. Mr. Matthews met with Ms.

Mollaei in an effort to understand the nature of her business and how she organizes her business affairs. Mr. Matthews and Mr. Mackay spent 33 hours on the retainer and billed $9,300. [ 49 ] The plaintiff submits that it was necessary to retain the services of a forensic accountant to provide a report on what the plaintiff could have conceivably earned in continuing to run a daycare business, including certain assumptions with respect to the expansion of that business as the plaintiff had planned but for the accidents. Mr.

Matthews’ report provided a range for the plaintiff’s past business loss in the amount of $225,295. At the mediation the plaintiff’s claim for pass loss of earning capacity/income loss was stated at $250,000. The loss of future earning capacity claim was stated to be $85,000. The claim settled for $130,483.35 (as stated above). [ 50 ] The plaintiff submits that the amount for which the action settled is not relevant in the determination of whether disbursements are necessary or proper and reasonable. A determination cannot be made with “hindsight”. [ 51 ] The defence position with respect to Mr.

Matthews’ report is that his opinion is of no utility as he was given no foundation for his findings. Mr. Matthews arrived at his conclusions on the assumption that by the trial date, the plaintiff would have had a daycare business with 45 children, an assumption which is not supported by the evidence. The plaintiff obtained her licence in 2003 and opened her first daycare in January 2010. There is no evidence that she sought or obtained a certification for a daycare serving 10 children or more.

The overall submission of the defence is that there was no need for a forensic accountant given the history of earnings in this matter. With respect to the fee the defence submission is that it was unnecessary for Mr. Matthews to spend 10 hours reviewing documents, many of which were not relevant to the issue of income loss. This work should have been done by counsel in advance. The defence submits that a shorter report would have been more reasonable, and that a fee of $3,100 would be sufficient. [ 52 ] In my view, having reviewed the report of Mr.

Matthews, I conclude that while it may have been necessary for the plaintiff to have an accountant’s report going to trial, the fee charged of $9,300 is disproportionate to the relevant work conducted and the conclusions reached. I accept the submissions of the defence that a fee of $3,100 is appropriate. 9) Interpreters [ 53 ] The plaintiff’s first language is Farsi. She claims fees associated with having an interpreter attend the specialist appointments with Drs. Shuckett, Paramonoff, Riar and Hamm.

An interpreter was booked for the plaintiff’s examination for discovery, but cancelled when the defence counsel’s office received a mysterious telephone call advising that the plaintiff did not feel she needed a Farsi interpreter for the discovery. There is some dispute as to from whom this call originated. An interpreter also attended the mediation.

[ 54 ] In his affidavit, Mr. Kancs deposes that: 72. The second time that I saw my client, her husband, Masoud, attended as well. My client’s husband appeared to speak and understand English much better than my client did. 73. As my paralegal, Ms. Gauer, and I continued to deal with my client’s claims, it became clear that there was a bit of a “language barrier” in terms of properly understanding what my client was telling us. My paralegal advised me on June 28, 2010, that Ms.

Mollaei preferred that I speak with her husband, rather than herself, because of this “language barrier”. [ 55 ] It is plaintiff’s counsel’s submission that the lack of an interpreter at the examination for discovery caused problems, citing portions of the discovery transcript demonstrating Ms. Mollaei’s difficulty with the English language. [ 56 ] The defence submission is that the plaintiff’s use of interpreters has been sporadic. She requested an interpreter for the IME appointment with Dr. Axler. There was no such request for the IME with Dr. Richardson and the IME proceeded without one.

At the mediation the interpreter did not arrive until after the parties had completed extensive discussions and the parties had gone to their separate rooms. The defence submits that the portions of the discovery transcript relied on by the plaintiff are carefully chosen and do not reflect the general tenure of the discovery. The defence submits that at no time during the examination did the plaintiff express any concerns about her ability to give her evidence in English, nor did her counsel.

Perhaps most notably, the defence submit, the plaintiff’s affidavit in support of this assessment, wherein she deposes as to her need for an interpreter, was sworn in English without the assistance of an interpreter. [ 57 ] Overall, it is my view that the plaintiff has failed to demonstrate that an interpreter and the cost thereof should be transferred to the defendants. I accept the submissions of the defendants that, in the circumstances, an interpreter was a comfort rather than a necessity.

In the circumstances, I disallow any costs associated with an interpreter. 10) Miscellaneous Disbursements [ 58 ] The charges for colour reproductions, courier fees, a Freedom of Information (“FOI”) request, and photocopies were also disputed. Taking those in the order in which I have stated them, I allow for the cost of the colour reproductions, disallow the cost of the FOI request which was not necessary in my view, disallow the courier fees to the extent that they relate to reports which have been disallowed, and reduce the photocopies to $2,000.

The latter reduction is made using the “rough and ready” approach set out in Sovani v. Jin, 2006 BCSC 855 . IV. COSTS OF THE ASSESSMENT [ 59 ] The plaintiff is entitled to her costs of the assessment which I allow at $2,500 inclusive of taxes and disbursements. [ 60 ] If the parties require a certificate, they may submit one with the endorsement of counsel confirming the amount calculated according to these reasons. Master S. Scarth