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Do You Have to ‘Spend Money to Make Money’ in ICBC Claims?

Will ICBC have to pay my lawyer’s out-of-pocket expenses at the end of the claim?  What if my lawyer obtained a number of expert reports even though my case didn’t seem very strong?

After an ICBC claim has gone to trial or settled, the lawyers are left to deal with the issue of “costs” – that is, the expenses the plaintiff’s lawyer incurred prosecuting the claim.  Most ICBC settlements agree that ICBC will pay an additional amount on top of the settlement towards those extra expenses.  If the lawyers can’t agree on a fair amount, the issue of costs goes to a hearing before a registrar – like a mini-trial.

In this week’s case, Master Taylor (sitting as registrar) considered expenses incurred by a plaintiff’s lawyer in the course of the prosecuting the plaintiff’s claim (2018 BCSC 1504 Rahmation v Tisdall).  The plaintiff herself was something of an unfortunate soul – she’d suffered a number of injuries and health issues over the years, and the motor vehicle collision that was the subject of litigation was just one in a string of incidences.  Regretfully, she had also told a few medical experts over the course of the case falsehoods about her employment history and status.

Plaintiff counsel, realizing the plaintiff’s complicated history, felt it was necessary to engage several experts to sort out what role the subject collision had in her present situation.  Accordingly, plaintiff counsel obtained reports from a physiatrist (physical medicine specialist), a psychiatrist, an occupational therapist, and an economist.   The defendant refused to pay for the reports, arguing the following:

[13]         On the other hand, the defendants submit that the disbursements incurred were not necessary or properly incurred because at the time it was known to the plaintiff that:

(a) Her credibility was a problem;

(b) The plaintiff had a pre-accident disability that was attributable to many pre-existing conditions;

(c) The plaintiff’s pre-accident functioning and activities were not significantly altered by the accident; and

(d) The claim for damages from a minor rear-end accident was clearly modest in the case.

Master Taylor disagreed, and allowed the expense of each report in full.  In the below excerpt, he points out some of the limitations with the defendant’s arguments:

[51]         I have been asked by the defendants to judge the situation when the disbursements were incurred in light of the fact that the defendants had already made formal offers to settle in the amounts of $25,000.00 and $35,000.00.

[52]         The defendants say the first formal offer of $25,000.00 was made on November 15, 2016, and the increased formal offer of $35,000.00 was made on February 22, 2017, which should have alerted the plaintiff that her case was weak, and not needing the opinions of medical experts. Yet the defendants sought a second defence medical examination of the plaintiff by Dr. Lazar on October 25, 2017, and on October 26, 2017 sought a defence medical examination of the plaintiff with Dr. Hummel. Surely, if the defendants thought their offers of settlement were appropriate at the time they were made, they wouldn’t have been second guessing their offers by seeking further examinations of the plaintiff well after making their formal settlement offers. And, if this is the case, how can the defendants now criticize the plaintiff for seeking her expert reports when she did?

[53]         I conclude that the fee accounts rendered by the experts retained by the plaintiff were reasonable, and that the retainer of the experts was appropriate in the circumstances of this litigation.

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