Costs and Disbursements

I have just settled my claim with ICBC and they have agreed to pay for “taxable costs and disbursements”. How will the court decide what expenses can be claimed under this amount?

The recent judgement of Perron v Catalano (2016 BCSC 1285) involved a motor vehicle crash that occurred in June 2011, resulting in a claim that was settled in November 2015 for a total $111,460.53, plus taxable costs and disbursements. Due to the injuries sustained in the crash, the plaintiff was required to obtain several expert opinions and undergo numerous medical examinations. Counsel for the plaintiff claimed all the costs of these opinions and examinations as “taxable costs and disbursements” the defence was required to pay. In response, the defence filed an application to the court disputing several items claimed by the plaintiff as taxable costs and disbursements. In regard to costs, the defendant disputed the time units claimed for correspondence with ICBC and experts, as well as, the units claimed for trial conference attendance and trial preparation. With regard to disbursements, the defence disputed the amounts claimed for numerous expert/treater reports, expert cancellation fees and a private MRI. Before analyzing each disputed item, Master Scarth, reviewed the relevant rules and principles the court considers when deciding whether an item can be claimed by the plaintiff as a taxable  cost or disbursement.

[9]             There was no dispute as to the principles which apply on the assessment of costs. They were recently reviewed by Registrar Nielsen in Carreiro v. Smith, 2015 BCSC 2379 at paras. 12 to 15 (tariff items), and paras. 17 to 19 (disbursements). I set them out here to confirm that these are the principles that I have applied on this assessment.

[12]      Pursuant to Supreme Court Civil Rule 14-1(2), the Registrar is to allow tariff fees with respect to work that was proper or reasonably necessary to the proceeding and must consider Supreme Court Civil Rule 1-3, the object of the Rules.

[13]      Whether work for which fees are claimed should be allowed must be determined objectively. A step was necessary if it was indispensable to the conduct of the proceeding. A step was proper if it was not necessary, but was nevertheless reasonably taken or incurred for the purpose of the proceeding. In fixing the number of units for items where a minimum and a maximum number of units is allowed, the Registrar is to allow the minimum amount of units for matters upon which little time should ordinarily have been spent; and the maximum amount of units for matters upon which a great deal of time should ordinarily have been spent.

[14]      The assessment of discretionary tariff items is an objective exercise. In determining the proper number of units to award in respect of each item, the Registrar is to compare the case that is before him or her with all other cases that come before the court, and decide where it fits within the spectrum. Certain objective factors are to be considered, such as whether the litigation was simple or straightforward, if the litigation involved numerous parties, extensive legal issues, numerous experts, large sums of money, or any other factors which may have impacted upon the case’s difficulty.

[15]      Registrars are to have regard to the particular circumstances of the proceeding in which costs are claimed when deciding how many units within the prescribed range should be allowed.

…

[17]      Supreme Court Civil Rule 14-1(5) provides:

(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.

[18]      There are a number of principles to be considered on an assessment of disbursements. Those applicable principles were summarized in Turner v. Whittaker, 2013 BCSC 712 at para. 5, wherein Master MacNaughton stated:

[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 must take into account proportionality under Rule 1-3. (Fairchild v. British Columbia (Vancouver Coastal Health Authority), 2012 BCSC 1207).
3. The time for assessing whether a disbursement was necessarily or properly incurred is when the disbursement was incurred not with the benefit of hindsight. (Van Dael v. Van Dael, 56 B.C.L.R. 176 (SC) rev’d 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 is reasonably 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 counsel might have handled the matter differently. (McKenzie v. Darke, 2003 BCSC 138, para. 21)

[19]      To these principles I would add those in Holzapfel v. Matheusik (1987), 14 B.C.L.R. (2nd) 135, which are summarized in Cloutier v. Wong, 1992 12 C.P.C. (3d) 169 where the Court stated at para. 5:

5. In Holzapfel v. Matheusik (1987), 14 B.C.L.R. (2d) 135, the Court of Appeal approved the following principles set out in the authorities:
6. The onus of proof rests on the party submitting the bill to establish affirmatively the necessity or reasonableness of the charges he claims as disbursements (Hall v. Strocel (1983), 34 C.P.C. 170 (B.C.S.C.).
7. The solicitor responsible for the preparation of the case should give evidence, which may be by affidavit, verifying that the work was necessary for the full and proper presentation of the case and that the fees charged for the work were reasonable in the circumstances (Berite v. Schuette (1980), 17 C.P.C. 259 (B.C.S.C.).
8. If the expert’s bill contains less than a reasonably detailed outline of the work he performed and the hours he devoted to his retainer, an affidavit sworn by the expert may be required (Berite v. Schuette (1980), 17 C.P.C. 259 (B.C.S.C.).
9. The affidavit of verification does not bind the assessment officer but he should consider it carefully and weigh it against the other evidence (Bell v. Fantini; Fasciana v. C.N.R. (1981), 32 B.C.L.R. 322 (B.C.S.C.))