In a recent decision of the British Columbia Supreme Court, Master Muir (sitting as Registrar) was asked to assess disbursements for three private MRIs after a settlement in a personal injury case (Ieraci v Galllo 2016 BCSC 1611). The defendants had refused to pay for the MRIs, saying the expense of the three private MRIs was not justified, and that the plaintiff should have waited for an MRI through the public system.
Counsel for the plaintiff submitted that the private MRIs were justified in the circumstances. There was some urgency – the matter was in fast track and the defendants were pushing for an early trial. Further, private MRIs are apparently more reliable (a view perhaps unsurprisingly supported by the affidavit of an individual from the private MRI clinic). Plaintiff’s counsel noted that it was also important to have an expert who was experienced as an expert witness. Lastly, plaintiff’s counsel submitted that a report produced through a public MRI would not be privileged.
Master Muir agreed with the reasoning of plaintiff’s counsel, and allowed the disbursements:
[16] Counsel for the defendants relies on Kumanan v. Achim, 2013 BCSC 1867; Perron v. Catalano, 2016 BCSC 1285; and Ali v. Fineblit, 2016 BCSC 566 for the proposition that a publicly-funded MRI should have been ordered in all of the circumstances of this case, given that there was never any urgency.
[17] The facts of this case are sufficient to distinguish it from the cases relied upon by the defendants. The matter was in fast track. There was always the potential of an early trial date. Even though trial was not ultimately set until 2016, the threat was there.
[18] What I must do is to put myself in the shoes of plaintiff’s counsel at the time that the MRIs were ordered. The threat of an early trial, combined with the other strategic reasons, satisfies me that counsel’s decision was justified.
[19] I am satisfied that the MRIs were necessary and proper at the time and accordingly, the expenditure was reasonable.
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