Ezzemouri v. Wigeland

2020 BCSC 611 Ezzemouri v. Wigeland

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Ezzemouri v. Wigeland, 2020 BCSC 611 Date: 20200421 Docket: 53435 Registry: Vernon Between: Hassan Ezzemouri Plaintiff And Gregg Marcus Wigeland Defendant Before: Master Keim as Registrar Reasons for Judgment on Costs Counsel for the Plaintiff: J. Cotter Counsel for the Defendant (appearing February 5, 2020): D. Darman Counsel for the Defendant (appearing as agent February 13, 2020): R. LaGroix Place and Date of Hearing: Kamloops, B.C. February 5 and 13, 2020 Place and Date of Judgment: Vernon, B.C. April 21, 2020 [1] This matter arises out of an action that arose due to a car accident that occurred on June 5, 2015, when the plaintiff's vehicle was rear-ended by the defendant. The plaintiff filed a notice of civil claim on April 27, 2016 alleging the following injuries: (a) Injury to the neck and shoulders; (b) Injury to the back and hips; (c) Numbness and tingling in the arms and legs; (d) Whiplash; (e) Depression; (f) Blurred Vision; (g) Soft tissue injury and pain; (h) Headaches; (i) Sleep disturbances; (j) General pain and stiffness; and (k) Such other injuries as counsel for the Plaintiff may advise prior to trial; [2] The defendant filed a response to civil claim on March 21, 2017 and accepted liability for the causation of the accident, but sought to limit his exposure by claiming that the plaintiff was contributorily

negligent. [3] At the time of the accident, the plaintiff was working full-time and operated a martial arts dojo on the side. The plaintiff was off work for one year. He was then able to return to work, but only through an accommodation by his employer to place him on light duties. The plaintiff was unable to keep his side business open. [4] The plaintiff alleged significant cognitive symptoms, including neck and shoulder pain, and was diagnosed as having a traumatic brain injury. In addition, he relayed ongoing issues with his vision, depression, headaches and sleep disturbance. [5] The issues in this action were complicated because some of the injuries complained of were pre-existing and it was difficult to calculate the potential future income loss as a result of the sporadic nature of the profitability of his side business. [6] This matter was originally set for trial January 28, 2019 for five days, and defence counsel filed a jury notice. That trial date was ultimately adjourned and the trial was re-set to begin on December 2, 2019 for eight days. The defendant again filed a notice for trial by jury. [7] On November 27, 2019, just five days before trial was to begin, the parties reached a settlement in the amount of $179,066.72, plus costs and disbursements. [8] At issue before me are several of the disbursements and most of the tariff items. Counsel provided me with an

abundance of case law. I will restrict most of my comments regarding the cases provided to me to those cases which were specifically addressed by counsel in their submissions. [9] The starting point for any assessment of costs springs from the applicable law as set out in the Supreme Court Civil Rules, B.C. Reg. 168/2009 [Civil Rules]. [10] Rule 1-3 which sets out the object of the Civil Rules reads: Object (1) The object of these Supreme Court Civil Rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits. Proportionality (2) Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding in ways that are proportionate to (a) the amount involved in the proceeding, (b) the importance of the issues in dispute, and (c) the complexity of the proceeding. [11] With respect to disbursements, subrule 14-1(5) provides: Disbursements (5) When assessing costs under subrule (2) or (3) of this rule, a registrar must (a) determine which disbursements have been necessarily or properly incurred in the conduct of the proceeding, and (b) allow a reasonable amount for those disbursements. [12] Thus, an assessment of costs involves determining which expenses have been necessarily or properly incurred and whether or not the amount claimed is reasonable and proportionate within the overall context of the action.

TARIFF ITEMS [13] The parties agree on the following tariff items: Tariff item 19 - 3 units; Tariff item 20 - 5 units; Tariff item 34 - 5 units; Tariff item 44 - 5 units; Tariff item 45 - 5 units; Tariff item 46 - 3 units. [14] In dispute are tariff items 1, 2, 6, 10, 11, 17, 18, 31 and 32. Tariff Item 1 [15] The plaintiff seeks 6 units. The maximum is 10 units. [16] The defence position is that 2 units are appropriate. The defence submits that there is little evidence as to any actual work product that was done during the ten-month time period between when counsel for the plaintiff was retained and the action was started. [17] Both counsel referred me to Beard v. Robinson, 2019 BCSC 502 in relation to this tariff item. The plaintiff refers to this case for support of the proposition that Master McDiarmid awarded 5 units for the work that was undertaken when plaintiff's counsel in that matter had been retained ten months before the notice of civil claim was filed. [18] Defence counsel refers to that case for the statement that one needs to be careful that the work that is encapsulated under tariff item 1 is not already covered by tariff items 10 and 11. In addition, defence counsel referred to Scott v. Truter, 2015 BCSC 2403, a case in which the plaintiff claimed 4 units for work that occurred over a 14-month period prior to the filing of the notice of civil claim. Defence

counsel submits that the plaintiff has failed to show that they had to undertake more than the usual work for this particular motor vehicle dispute. [19] Plaintiff's counsel submits that this matter is worthy of 6 units because of the nature of the plaintiff's injuries and the fact that they had to involve Dr. Cameron in the early stages and prior to the action commencing due to the symptoms being reported by the plaintiff. In addition, the complications of the plaintiff's financial circumstances, both his employment and the existence of his side business, added a level of complexity that had to be managed in the beginning stages and prior to the action being commenced. [20] I am satisfied that sufficient work was undertaken during this time period to justify 5 units. Tariff Item 2 [21] The plaintiff seeks 20 units. The maximum is 30 units. [22] The defendant submits that 15 units would be more appropriate. [23] Plaintiff's counsel referred the court to Huizenga v. Davidson, 2015 BCSC 266 and Fairchild v. Vancouver Coastal Health Authority, 2011 BCSC 616 in support of the proposition that, when matters take close to four years to settle, it may be appropriate to award units at the higher end of the scale given the amount of work that had been undertaken during the course of the litigation. [24] The plaintiff submits that there was increased complexity in this matter and need

for more than the usual amount of work under this tariff item because the first trial was adjourned and they were required to obtain updated medical reports. This matter settled just three business days before trial. Further, as the defendant elected to proceed by jury, plaintiff's counsel made decisions based on an expectation of having to explain matters to a jury. The plaintiff did not speak English as his first language and he continued to suffer from ongoing symptoms throughout the course of the litigation - all of which added to the complexity of the matter. [25] Defence counsel argues that this matter was not a complex case and that the pleadings demonstrate it to be a fairly boilerplate matter. Given that the matter settled for just over $179,000.00, the defence submits that the settlement amount is indicative of the matter not being a terribly complex case. [26] I am satisfied on the evidence before me that more than the usual effort was required in order to properly advance this matter. I, therefore, award 20 units as sought. Tariff Item 6 [27] The plaintiff seeks 4 units. The maximum is 10 units. [28] The defendant submits that 2 units are appropriate. [29] The plaintiff argues that the fact that the matter was set down for an eight-day trial indicates the complexity of the matter. However, I am satisfied that the pleadings themselves do not deviate substantially

from standard boilerplate language and are, therefore, not complex in and of themselves. I, therefore, award 2 units. Tariff Item 10 [30] The plaintiff is seeking 5 units. The maximum is 10 units. [31] The defence submits that 2 units is more appropriate. [32] Defence counsel refers to Scott in support of the proposition that it is not just the number of pages that matters, but rather the number of documents that is at issue in determining the appropriate amount of units. [33] Plaintiff's counsel refers to Zendedil v. Popiela, 2016 BCSC 1817, wherein Master Muir allowed 6 units for a list of documents that had 41 documents listed. [34] Both parties agree that this tariff item falls under s. 10(a) given the number of documents. The defendant provided two lists of documents during the course of this action and in total listed 22 documents, although many of those documents consisted of multiple pages. Overall, I am satisfied that this was not a defendant document-heavy file and award 3 units. Tariff Item 11 [35] Both parties agree that this tariff item falls under s. 11(a) given the number of documents. The plaintiff seeks 10 units. The maximum permitted is 10 units. [36] The defence position is that 5 units would be appropriate. [37] In support of its position, the plaintiff has referred me to Sandhu v. Wilk, 2014 BCSC 1128, wherein Master McDiarmid comments that the appropriate

way to list documents is not on a page-by-page basis, but to group them and list them collectively even if that may then lead to a smaller number of documents being listed. The plaintiff raises this case in support of their position because the evidence before me is that many of the records, including the WorkSafeBC records, clinical records and income tax records, are all numbered in the hundreds of pages. In Sandhu, Master McDiarmid allowed 8 units for a document listing that had 160 documents on it. [38] Defence counsel referred me to Cowichan Bay Contractors Ltd. v. Insurance Corporation of British Columbia, 2008 BCSC 1326, a case in which District Registrar Bouck, as she then was, awarded 3 units for a list of documents that contained only 30 documents. I note, however, that in para. 33 District Registrar Bouck commented that the documents themselves were not voluminous. Defence counsel has also referred the court to Li v. Giesinger, 2015 BCSC 2414 as an example of a case where there were 93 pages of documents that had to be translated and, even given that extra effort, the court allowed only 5 units. [39] The plaintiff submits that his list of documents, which ultimately contained 85 documents, consisted of documents that have significant page counts and, therefore, required more time for review in order to prepare them for discovery and inspection. For instance, I am

advised that WorkSafeBC records consisted of over 300 pages, the clinical records were approximately 150 pages, and the income tax records, which were complex because of the plaintiff's side business as well as his employment income, were of a similar length. [40] I am satisfied that this file required more than the average amount of document preparation and, therefore, award 8 units. Tariff Item 17 [41] The plaintiff seeks 7 units. The maximum is 10 units. [42] The defendant submits that 5 units is more appropriate because not all experts were required and second reports were not necessary. [43] Plaintiff's counsel referred to Sandhu where the plaintiff utilized ten experts. Master McDiarmid said the following at para. 33: [33] Keeping in mind that in the most complex cases retaining and consulting experts for complicated technical opinions will result in 10 units. I agree with counsel for the defendants that 8 units are appropriate. I allow 8 units for item #17. [44] The plaintiff utilized six particular specialists throughout the course of this matter - a neurologist, a neuropsychologist, a psychiatrist, a physiatrist, an economist and an occupational therapist. The plaintiff says that the work involved regarding his experts was more than the usual because (1) the trial was adjourned for 11 months and so updated reports were obtained from most of the experts; and (2) the

defendant chose, for both trial dates, to proceed by jury, which affected some of the decisions that the plaintiff made in regards to preparing for trial given a different set of considerations that goes into trial preparation when the matter involves a jury. [45] I am satisfied that the 7 units being sought by the plaintiff is appropriate given the number of experts involved and the coordination of the various specialists and their reports in order to be ready for the second trial date. Tariff Item 18 [46] The plaintiff seeks 8 units. The maximum number of units is 10 units. [47] The defendant submits that 4 units are appropriate. [48] Defence counsel referred the court to Perron v. Catalano, 2016 BCSC 1285. In Perron, Master Scarth allowed 4 units for tariff item 18 on the basis that some of the additional expense incurred in regards to experts and witnesses were not necessary because the experts were then required to re-visit the file on numerous occasions. Here, defence counsel argues that the number of witnesses does not rise to the level of any work being done out of the ordinary and, therefore, units on the lower end of the scale is more appropriate. [49] Plaintiff's counsel referred again to Sandhu, in which 5 units were awarded for the ten witnesses that were expected to provide evidence. They also referred the court to Moon v. Golden Bear Mining Ltd., 2013 BCSC 165, a

decision in which Registrar Sainty, at para. 44, awarded 10 units for 16 witnesses that would have been called at trial. [50] In total between the two parties, there were nine witnesses outside of the six experts that were expected to be called. While I appreciate that there were some challenges with the plaintiff's own witnesses, for instance, he was subpoenaing his own daughters with whom he had a challenging relationship arising from an acrimonious divorce between himself and their mother, I am not satisfied that the level of work involved rises to the amount of units that is being sought by the plaintiff. I award 6 units. Tariff Item 30 [51] This tariff item was initially missed on the plaintiff's bill of costs, although in discussion, counsel for the defendant took no issue with the inclusion of 4 units under tariff item 30 as the parties appeared in front of me on two half days, constituting one full day of hearing. Therefore, 4 units are awarded under tariff item 30. Tariff Item 31 [52] The plaintiff seeks 3 units, which relates to the two trial management conferences that were held - one on November 13, 2018 and the second held October 21, 2019. The maximum number of units allowed is 6. [53] The defendant submits that 2 units would be appropriate. [54] I am satisfied that given the preparation, which required a new trial management brief for each appearance, as well as

counsel's preparation in order to be prepared to fully discuss the current status of the claim, 3 units is appropriate. Tariff Item 32 [55] The plaintiff seeks 5 units in relation to the two trial management conferences. The maximum units permitted for each appearance is 5 units, which would give rise to a maximum of 10 units for this tariff item. [56] The defence submits that 2 units in total would be appropriate given the short nature of each trial management conference. [57] I am satisfied that it is appropriate that there be 2 units for each appearance and, therefore, award 4 units for this tariff item. [58] The result is that there are 30 units as agreed between the parties, including tariff item 30, and 58 as awarded. Therefore, the total number of units awarded is 88.

DISBURSEMENTS [59] There are a significant number of disbursements associated with this bill of costs. I will discuss only the disputed disbursements and, therefore, any disbursement not specifically addressed in these reasons is deemed to have been accepted by both parties and is awarded as set out on the bill of costs. Photocopies [60] The plaintiff seeks $268.50 for photocopying, which represents 1,074 photocopies at $.25 per page. [61] The defendant says that the photocopying amount should be reduced by 50% to reflect that some of the photocopies would have been for administrative purposes as opposed to related strictly to the claim. [62] I am satisfied that a percentage of the photocopies would have related to the administrative management of the file and, therefore, allow photocopies in the amount of $201.38, which represents a 25% deduction for administrative purposes. Long Distance Charges [63] The plaintiff seeks $45.04 in long distance charges which are set out in detail in affidavit #1 of Kaitlyn Crandlemire dated January 28, 2020. Plaintiff's counsel advised that he only contacted his client via cell phone, which did not incur long distance charges, so all charges relate to calls with experts or opposing counsel. [64] The defendant submits that no long distance charges should be allowed on this file. [65] I am satisfied that there is sufficient interaction with

experts, as well as with opposing counsel who are located in Kamloops versus Vernon and, therefore, allow the amount of long distance charges of $45.04 in their entirety. Postage [66] The plaintiff seeks postage in the amount of $44.54. [67] The defendant submits that the amount should not be allowed and should be eliminated as being solely attributed to administrative matters on the file. [68] Having reviewed the postage charges as set out in affidavit #1 of Kaitlyn Crandlemire, I am satisfied that the bulk of the postage charged was necessary for the advancement of this matter and, therefore, allow postage in the amount of $33.41, which represents a 25% reduction of the postage charged, allowing for some postage due to file administration. Fax Charges [69] The plaintiff seeks reimbursement for $633.05 of fax charges, which represents 523 pages at $1.20 per page. [70] The defendant takes no issue with the number of pages, but submits that the appropriate amount should be $183.05 as faxes should be charged at a rate of $.35 per page. [71] I am satisfied that the defendant's position is appropriate and, therefore, allow faxes in the amount of $183.05. Printing Charges [72] The plaintiff seeks $482.75 related to printing costs. [73] The defendant submits that that amount should be reduced by 25% to reflect an appropriate amount of printing related only to the advancement of this

matter as opposed to printing for administrative purposes. [74] I am satisfied that it is appropriate to reduce the printing amount to reflect some administrative overhead, but I am not satisfied that it rises to the level of 25% given the number of experts involved in this matter. I, therefore, allow printing charges in the amount of $410.34. Administration Fee [75] The plaintiff seeks $50.00 for reimbursement of an administration fee. [76] The defendant submits that the appropriate trust fee should be $15.00. I allow an administrative fee in the amount of $15.00. Searches [77] The plaintiff seeks to be reimbursed $54.00 for BC Online searches related to requests to see if documents had been filed, or to obtain clerk's notes. [78] The defendant says this amount should not be allowed in its entirety, and that the searches were unnecessary. [79] Given the absence of any evidence of necessity for the searches, I decline to award any amount for the BC Online - CSB electronic search. Catering [80] The plaintiff seeks $114.00 for catering expenses related to a lunch that was provided on the day of mediation. [81] The defendant states that the provision of lunch was not necessary and, therefore, the expense should be disallowed in its entirety. [82] Absent evidence of agreement between the parties that a lunch would be provided, I disallow this expense and decline to order any amount

related to catering. CD/DVD Copying [83] The plaintiff seeks $30.00 for the copying of various DVD material. [84] The defendant states that this expense was simply not required. However, I am satisfied that given the number of experts involved in the matter and the nature of the records, that it would have been reasonable to expect that some copying had to occur. I allow $30.00 in its entirety. Ouellette Court Reporting Services [85] The plaintiff seeks $243.00 for the cost of obtaining a transcript for the second discovery that was held of the plaintiff on September 19, 2019. [86] The defendant objects to the expense on the basis that it was not necessary to obtain a transcript. However, I am satisfied that it was an appropriate expense and allow the amount of $243.00 in its entirety. Dr. Cameron's Second Report [87] The plaintiff seeks reimbursement for $984.00 relating to the provision of an updated report from Dr. Cameron. [88] The defendant objects to the expense on the basis that Dr. Cameron's second report was provided outside the time limits under the Civil Rules and would have been objected to had the trial proceeded and, secondly, that the report was unnecessary and unreasonable because it did not provide helpful information. [89] The plaintiff submits that Dr. Cameron was asked to provide a second report after reviewing a report from the psychiatrist, Dr. Spivak. The

plaintiff asserts that Dr. Cameron's second report was necessary, since in his first report Dr. Cameron had recommended that the plaintiff be evaluated by a psychiatrist and it was, therefore, necessary to obtain Dr. Cameron's opinion as to whether or not Dr. Cameron's opinion changed once he reviewed the report from the psychiatrist. [90] The plaintiff submits that this expense was particularly prudent given that the defence had chosen to proceed by jury trial and that it would be necessary for the jury to be provided with Dr. Cameron's opinion once the plaintiff had been assessed by a psychiatrist. [91] I have reviewed Dr. Cameron's report dated November 17, 2018, and note that other than a re-enforcement of his previous opinion and some reiteration of Dr. Spivak's opinion, the report does little to provide any further helpful information that could have assisted the court. Therefore, I do not allow the expense for Dr. Cameron's second report. Dr. Schmidt IME Deposit [92] The plaintiff seeks $1,500.00, which represents the deposit charged by Dr. Schmidt to retain him for an independent medical examination ("IME"). [93] The defendant does not take issue with the amount charged by Dr. Schmidt for the report and the examination, but does take issue with the $1,500.00 IME deposit. [94] In total, Dr. Schmidt was asked to provide two reports. There was no submission from the

defendant that the reports themselves were unnecessary or imprudent. A review of the invoices provided by Dr. Schmidt shows that the $1,500.00 deposit was paid. It then sets out the various activities and the time spent on each activity and then the total that is remaining. [95] For his first report, Dr. Schmidt charged a total of $6,693.75, which was paid by the $1,500.00 deposit and then the follow-up payment of $5,193.75. In total, Dr. Schmidt sets out that he spent 17 hours at a rate of $375.00 per hour in producing the first report. I am satisfied that that is a reasonable hourly rate given Dr. Schmidt's expertise and that the amount of time was appropriate. The total amount of $6,693.75 is reasonable and, therefore, the $1,500.00 deposit is allowed in its entirety. Dr. Schmidt's Second Report [96] For Dr. Schmidt's second report, the plaintiff is seeking $1,500.00 for the deposit and $3,375.00 for the report. This fact again is a bit of a misnomer because the fact is that, regardless of how the amount was paid, the total amount paid for the second report was $4,875.00. [97] The defendant does not take issue with the necessity for Dr. Schmidt's second report. He simply states that the $4,875.00 is an unreasonable cost and that the court should disallow the amount of the deposit and allow only the amount of $3,375.00. [98] A review of the invoice from Dr. Schmidt for the

second report reveals that his hourly rate remained the same at $375.00 per hour and he spent a total of 13 hours in producing the second report. [99] I am again satisfied that the amount of time spent and the hourly rate is reasonable and, therefore, the entire amount for the second report of $4,875.00, which represents a $1,500.00 deposit, plus $3,075.00 payment, is allowed in its entirety. Dr. Spivak - Late Trial Cancellation [100] The plaintiff seeks $3,000.00 which was charged by Dr. Spivak for the late notice associated with the trial cancellation. [101] The defendant states that $3,000.00 is an unreasonable amount to pay absent clear evidence that Dr. Spivak met his obligation to attempt to fill the time and that a more appropriate cancellation charge is $1,500.00. [102] I have reviewed the letter of explanation provided by Dr. Spivak regarding the $3,000.00 invoice. In fact, the $3,000.00 represents two different amounts; namely, $1,000.00 for two hours preparation that had already been undertaken at the hourly rate of $500.00 and, secondly, $2,000.00 for the cancellation since Dr. Spivak was notified only three business days in advance of the trial date. [103] I am satisfied that the cancellation charge of $2,000.00 is a reasonable amount given the late date at which the trial was cancelled. As the other $1,000.00 represents cost of preparation thrown away by Dr.

Spivak, it is also appropriate to include that amount. Therefore, I allow the amount of $3,000.00 for Dr. Spivak's invoice in its entirety. Creative Rehabilitation Services' Report [104] The plaintiff seeks reimbursement of $131.25 relating to a second report that was provided for the purpose of estimating end dates for future cost services. [105] The defendant says that this report was not necessary and that the addition of the end dates could have been handled at trial and, therefore, this amount should not be allowed. [106] I am satisfied that the need to clarify potential end dates for various services could have been handled easily at trial, even in a jury trial. Therefore, I disallow this expense in its entirety. Associated Economic Consultants' Report [107] The plaintiff seeks reimbursement for a second report that was provided by Associated Economic Consultants in the amount of $925.00. [108] The defendant objects to the inclusion of this expense on the basis that the report was not necessary since the length of time that had elapsed from the first trial to the second trial was only 11 months and, therefore, the first report would have still been sufficient and nothing was substantially changed in the second report. [109] However, I am satisfied that it was a prudent decision to obtain an updated economic report for the second trial, which was to proceed by jury, so

that the jury would be dealing with the most current and relevant information at the time of trial. I, therefore, allow the amount of $925.00 in its entirety. Meridian Rehabilitation - Trial Preparation [110] The plaintiff seeks reimbursement of $142.00 relating to the trial preparation for a witness from Meridian Rehabilitation. [111] The defendant objects to the inclusion of this expense on the basis that Ms. Wright was not added to the witness list until after the deadline and, therefore, would have been objected to at trial and potentially not permitted to give evidence in any event. [112] I am satisfied that there were potential difficulties with the evidence that may have been provided by Ms. Wright and that the amount of $142.00 is not allowed. [113] On the bill of costs, the plaintiff separated out the GST and PST, so the amounts reflected above are exclusive of the applicable taxes. The plaintiff is entitled to the appropriate taxes for each disbursement. Non-Taxable Disbursements [114] At the start of the second day of the hearing, counsel for the plaintiff confirmed that they were no longer seeking $200.00 for the filing of the Part 7 writ and that the BC Online filing charges should be reduced to $480.00. Therefore, the non-taxable disbursements amount to $680.00, representing $200.00 for the filing of the tort writ and $480.00 for the BC Online filing charges. Those costs are allowed in their entirety. [115] Plaintiff's counsel should submit a revised bill of costs and certificate of costs reflecting this decision. If there are offers to settle costs of which I am not aware, counsel have leave to provide written submissions to me through Supreme Court Scheduling. "Master J.M. Keim"

MASTER KEIM