Canada Case Law

Herzig v. Golowko

Court

Supreme Court of British Columbia

The plaintiff failed to prove undue hardship or the necessity of additional expert evidence: financial disclosure was insufficient to establish inability to pay or the real sacrifice required, and the proposed non-orthopaedic experts were premature and unnecessary given that recommended treatment (physiotherapy) and diagnostic imaging (MRA) had not been undertaken and the orthopaedic opinion indicated ongoing ability to work and no progressive deterioration; therefore the DEER exclusion and leave under Evidence Act s.12.1 are denied.

Source excerpt

• Disbursements and expert evidence regulation (deer)
• Evidence act s.12.1 leave for additional experts
• Undue hardship test
• Expert evidence limits
• Future wage loss valuation
• Proportionality and 'skin in the game'

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Yu v. Oechsner

Court

British Columbia Court of Appeal

An order under DEER dealing with exclusion of disbursements is an order 'in respect of costs' within Rule 11(f) so appeals from such orders require leave under R.11(f) and (g); leave to appeal was refused because the appeals lack sufficient merit and are moot or no longer significant given settlements, so denying leave is in the interests of justice.

Source excerpt

• Disbursement cap under deer
• Meaning of 'incurred' in s.5(8)(a) deer
• Limited appeal orders (r.11(f),(g))
• Leave to appeal
• Mootness and settlements

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Gill v. Gregory

Court

Supreme Court of British Columbia

The court dismissed a DEER application to exclude expert and mediation disbursements, finding the plaintiff had not shown undue hardship despite some risk of shortfall.

• Expert evidence cap
• Disbursement and expert evidence regulation (deer)
• When a disbursement is incurred
• Hardship test under s.5(8) deer
• Expert-evidence-cap
• Deer

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Hansma v. Atira Property Management Inc.

Court

Supreme Court of British Columbia

The court approved a class notice program for Winters Hotel fire claimants, while refusing deletion of contact data and capping discretionary notice costs and a social worker expense.

• Notice to class
• Certification
• Opt-out process
• Data retention and privacy
• Cost apportionment
• Use of third-party locator/social worker

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Kaur v. Lin

Court

Supreme Court of British Columbia

The plaintiff sought to exclude expert and transcript disbursements under s. 5 of the Regulation, but the application was dismissed for lack of evidence of cap risk.

• Expert evidence
• Disbursement cap
• Regulation interpretation
• Applications under s.5 of the disbursements and expert evidence regulation
• Expert-evidence
• Disbursements

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Rocheleau v. Khokhar

Court

Supreme Court of British Columbia

The court dismissed a pre-trial application to have proposed disbursements treated as excluded disbursements under the Regulation, finding no sufficient proof of undue hardship.

• Excluded disbursements
• Undue hardship
• Expert reports
• Causation
• Excluded-disbursements
• Undue-hardship

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Chan v. Hogan

Court

Supreme Court of British Columbia

Application under the Disbursements and Expert Evidence Regulation partially allowed. Expert report and mediation disbursements were excluded, but IME travel costs were not.

• Disbursements exclusion
• Expert evidence
• Independent medical examinations
• Mediation fees
• Undue hardship
• Causation

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Joshan v. Pathak

Court

Supreme Court of British Columbia

The court granted an application to exclude expert disbursements for a physiatrist and economist under s. 5 of the Regulation, and ordered costs in the cause.

• Expert evidence exclusion
• Disbursement cap
• Future loss damages
• Financial hardship
• Pre‑trial applications
• Expert-evidence

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Tran v. Ozee

Court

Supreme Court of British Columbia

The court partially granted a pre-trial application to exclude expert disbursements from the vehicle-injury cap, allowing psychiatry and related application costs, but not an occupational therapy FCE.

• Disbursements cap
• Expert reports
• Necessity and proportionality
• Psychiatric evidence
• Occupational therapy / fce
• Statutory interpretation

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Eli Lilly Canada Inc. v. Apotex Inc.

Court

Federal Court

The Federal Court awarded Apotex elevated lump sum costs after a patent summary trial, allowed disbursements, deducted Lilly’s hearsay-motion costs, and ordered 5% post-judgment interest.

• Summary trial
• Invalidity (overbreadth, insufficiency)
• Costs assessment
• Lump sum costs
• Tariff b
• Post-judgment interest

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