How much should ICBC have to pay a plaintiff for the travel to attend an appointment with an expert of their selection?
In last week’s case of Nieman v. Joyal (2015 BCSC 1980) the issue was whether ICBC should pay $0.30/km or $0.50/km to plaintiffs for their travel to attend appointments with ICBC’s medical experts. ICBC’s counsel argued that they should only pay $0.30/km as set out in Schedule 3 of the Rules regarding costs for travel to hearings or examinations. The plaintiff’s lawyer referred to the rule for attending a physical examination, pointing out that this rule (Rule 7-6(a)) permits the court to order reasonable expenses connected with that examination, and argued that since the rule permits discretion and does not compel reference to Schedule 3, the Schedule should not govern. In accepting the plaintiff’s argument, Master McDiarmid made the following order:
[28] A careful reading of Rule 7‑6 reveals that it refers to an order that the person submit to examination by a medical practitioner, and then the court is permitted to make an order respecting any expenses connected with the examination. No specific reference is made to the Schedule 3.
[29] It seems to me that there is no difference in principle between the reasonable expenses of a plaintiff attending his own doctor, such as was awarded at 50 cents a kilometre in several of the cases, including the ones of Justice Stewart and Justice Schultes, and a plaintiff attending an independent medical examination, especially where the plaintiff agrees to attend an independent medical examination located in a different city.
[30] Accordingly, I order the following:
1) the plaintiff is to attend to be examined by Gary Worthington‑White, an occupational therapist, on a date to be agreed upon by the parties, with liberty to apply if there are difficulties;
2) the defendant must provide conduct money as follows: firstly, mileage for 730 kilometres at 50 cents a kilometre, which is $365; secondly, overnight accommodation for one night at $175; and third, meals in the amount of $75. I apprehend that there will be at least four;
I know that it is approximately three and a half hours’ driving time from Burnaby to Kamloops, and it seems to me that what is reasonable here is that if the appointment ends before 4:30 p.m., it is reasonable for the plaintiff to drive home. So this is the next part of the order: If the appointment ends after 4:30 p.m. on the date it commences, the defendant must promptly reimburse the plaintiff for one additional night’s accommodation and $12 additional meal allowance;
3) if there are parking expenses not included in the hotel accommodation, those are to be promptly reimbursed upon being provided with the invoicing;
4) the plaintiff can submit actual meal expenses, including alcohol, less whatever he has received in his allowance, as costs and the registrar can determine the reasonableness on assessment; and
5) any notes recording any history or observations and data, including test results, are to be provided by October 31, 2015, or at such other date as may be agreed upon by counsel, if the presently‑scheduled examination does not go ahead.
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