Mandair v. Sandhu, 2024 BCSC 246

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Mandair v. Sandhu, 2024 BCSC 246 Date: 20240119 Docket: M232466 Registry: New Westminster Between: Karen Nirlep Mandair Plaintiff And Surjit Singh Sandhu Defendant Before: Associate Judge Nielsen Oral Reasons for Judgment In Chambers Counsel for the Plaintiff: A.D. Walia Counsel for the Defendant: G.P.G. Deshon Place and Date of Hearing: New Westminster, B.C. January 19, 2024 Place and Date of Judgment: New Westminster, B.C.

January 19, 2024 [ 1 ] THE COURT: This is an application pursuant to s. 5(6) of the Disbursement and Expert Evidence Regulation seeking an order that the expert report of Dr.

Singla, a physiatrist, be considered an excluded disbursement as well as the costs of the discovery of the defendant and the examination for discovery transcripts of the plaintiff and the defendant. [ 2 ] The application also seeks an order that the disbursements incurred by the plaintiff for any expert rebuttal, response or reports, expert trial preparation, trial testimony and late cancellation of trial be excluded for the purposes of s. 5(2) of the regulation. [ 3 ] The plaintiff is also seeking the costs of this application. [ 4 ] The plaintiff is 65 years old.

She is currently on a disability allowance of some sort in the amount of $2,600 a month, which translates into $31,200 a year. [ 5 ] The motor vehicle accident occurred on October 15, 2018. It is a situation where both the plaintiff and the defendant were reversing in a parking lot and the vehicles struck one another. Liability is hotly in dispute. [ 6 ] To be an excluded disbursement, the party seeking that order must make the application prior to the disbursement being incurred. That condition has been met here. Further, the party making the application has to satisfy the conditions set out in subsection (8).

Subsection (8) provides:

a) the application is made before the disbursement was incurred.

b) were the disbursements not excluded, the party making the application would suffer prejudice disproportionate to the benefit of not increasing the complexity and costs of the vehicle injury proceeding. [ 7 ] Section (9) provides:

(9) In an application under subsection (6), a party must include the following: (

a) the nature and the evidentiary value of each disbursement that is the subject of the application; (

b) evidence of the prejudice the party would suffer were the disbursements that are the subject of the application not excluded, which must include (

i) evidence that there is a reasonable risk that the total amount of disbursements the party intends to incur to resolve the vehicle injury proceeding will exceed the disbursement limit,

(ii) evidence that the disbursements that are the subject of the application are necessary to justly resolve the vehicle injury proceeding in light of the complexity of the vehicle injury proceeding or the importance of the issues in dispute, and (iii) evidence that the party would be unable, without undue hardship, to incur the disbursements that are the subject of the application were those disbursements not excluded. [ 8 ] In the present case, the plaintiff, although on a disability pension of $2,600 per month, is working part-time as a financial advisor.

I do not have any evidence before me concerning how often she is working or what she is earning. [ 9 ] The plaintiff does have a fairly complex pre-existing history of injuries and conditions, although the nature of her complaints are more restricted to soft-tissue injuries. She has been treated by her family doctor, a physiotherapist and a chiropractor. Nowhere in the evidence was there a suggestion that she be referred to an expert for consultation.

However, even absent a referral to an expert for a consultation, it could be that the legal issues arising in the case require such a referral. [ 10 ] In the present case, I find the plaintiff does have a complicated etiology of complaints due to her historic injuries and pre-existing condition. In that context a physiatrist is a logical choice in terms of an expert to provide evidence to the court.

That is not the end of the inquiry. [ 11 ] In terms of evidence that there is a reasonable risk that the total amount of disbursements the party intends to incur to resolve the vehicle injury will exceed the disbursement limit is always a difficult question to answer. There is no crystal ball.

It is not possible to predict with any certainty what the result of trial will be, given the vagaries of litigation. [ 12 ] There was reference during the course of argument to an offer to settle made by the defendant, which if accepted, would result in the estimated cost of the physiatrist report exceeding the 6 percent limit. The defendant referred to Abdul-Ahad v. Challa, 2021 BCSC 795 , at paras. 34 and 35 , in terms of that information being privileged. The concept of privilege is complex and nuanced. It was not suggested to me what the offer was, or how it was broken down.

It was an unstated global offer, and that, in my view, I can take into consideration on an application of this nature. [ 13 ] The plaintiff does have the onus of proof.

They have to prove causation, etiology, and must satisfy the court that the claim for damages flow from the motor vehicle accident, and the injuries the plaintiff allegedly suffered as a consequence. [ 14 ] Finally, there has to be evidence that the party would be unable, without undue hardship, to incur the disbursements that are the subject of the application were those disbursements not excluded. [ 15 ] The plaintiff has filed an affidavit explaining she is 65 years old and resides with her eldest son in Langley, BC.

She also indicates that since the accident she has been unable to work and is currently on disability. Although she receives a monthly payment of $2,600, that may change in the coming months to be substantially less. In addition, she sometimes works as a financial adviser. There is no evidence of her earnings in this regard. [ 16 ] The plaintiff also references in her affidavit that she has a substantial debt load, although we have no particulars in that regard.

She states that her financial situation is not good, and she would be unable to afford to pay for expert reports to meet the burden of proof in her case. [ 17 ] The defendants have produced an affidavit which shows that the defendant was a joint tenant on a piece of property owned with her husband. I note that the registered owner in fee simple refers to a Mr. Mandair with the plaintiff as "his wife." They are both named as joint tenants.

The property had an assessment value of $5,290,127 and was ultimately sold October 18, 2017, for $11,115,500. [ 18 ] There is no response to that affidavit or the information contained therein. [ 19 ] The plaintiff has made the submission that the amount of a party's assets should not be a relevant consideration; rather, it is whether the ability to pay for the disbursement arising out of a potential judgment is what is determinative. [ 20 ] I disagree. The provision at s. 9 (b)(iii) is specific.

It provides there must be evidence that the party would be unable, without undue hardship, to incur the disbursements that are the subject of the application were those disbursements not excluded. [ 21 ] The current yearly earnings of the plaintiff are in the neighbourhood of $31,200. In addition, she worked for a period of time as a financial advisor. We also have the evidence that she owned a piece of property, in joint tenancy, with her husband which sold for $11,115,500.

This does not equate with undue hardship. [ 22 ] I am not satisfied, in the context of this case, that the plaintiff would be unable, without undue hardship, to incur the disbursements that are involved here. Accordingly, the application to have them excluded is dismissed. [SUBMISSION ON COSTS] [ 23 ] THE COURT: The defendant will have their costs in the cause. “Associate Judge Nielsen”