Fan v. Chana, (2011) 314 B.C.A.C. 78 (CA)

• Judge: Hall, Levine and Garson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: October 19, 2011
• Jurisdiction: British Columbia
• Citations: (2011), 314 B.C.A.C. 78 (CA);2011 BCCA 516

Fan v. Chana (2011), 314 B.C.A.C. 78 (CA);

    534 W.A.C. 78

MLB headnote and full text

Temp. Cite: [2011] B.C.A.C. TBEd. DE.022

Julia Fan, an Infant by her Mother and Guardian Ad Litem Lana Fan (appellant/plaintiff) v. Sohan Singh Chana and Bindhu Chana (respondents/defendants)

(CA037478; 2011 BCCA 516)

Indexed As: Fan v. Chana

British Columbia Court of Appeal

Hall, Levine and Garson, JJ.A.

December 14, 2011.

Summary:

The plaintiff, by her guardian ad litem, sued the defendant for damages for injuries suffered in a 2000 motor vehicle accident when she was eight years old. Liability was not in issue. Trial took place in 2009.

The British Columbia Supreme Court, in a decision reported at [2009] B.C.T.C. Uned. 1127, determined that the plaintiff had suffered soft tissue injuries that lasted less than two years and awarded non-pecuniary damages of $25,000 and agreed special damages of $6,721.42. In subsequent costs rulings reported at [2009] B.C.T.C. Uned. 1497 and [2010] B.C.T.C. Uned. 1646, the court awarded the plaintiff her taxable costs and disbursements to the date of the defendants' offer to settle (which the plaintiff refused), with the exception of the disbursements in respect of expert reports prepared by Drs. Hahn and Kuttner. The plaintiff appealed.

The British Columbia Court of Appeal allowed the appeal in part. The court upheld the damage award absent error: see paragraphs 9 to 20. The court modified the disbursements award to allow the plaintiff to recover her costs in respect of Dr. Hahn's reports: see paragraphs 45 to 56. The court upheld the decision in respect of Dr. Kuttner's report, but for different reasons: see paragraphs 45 to 58.

Damage Awards - Topic 57

Injury and death - Body injuries - Shoulder (incl. rotator cuff) - [See Damage Awards - Topic 71 ].

Damage Awards - Topic 71

Injury and death - Body injuries - Back - Sprains, tears and soft tissue injuries - The plaintiff sued for damages for injuries suffered in a 2000 motor vehicle accident when she was eight years old - Liability was not in issue - Trial took place in 2009 - The plaintiff claimed that she suffered ongoing pain in her neck, shoulder and back, and headaches - The trial judge determined that the plaintiff had suffered soft tissue injuries that lasted less than two years and awarded non-pecuniary damages of $25,000 and agreed special damages of $6,721.42 - The plaintiff's complaints of pain were not credible in light of the evidence that she was, in fact, quite functional in her life away from home - The headaches were unrelated to the accident - The British Columbia Court of Appeal upheld the award, absent error - See paragraphs 9 to 20.

Damage Awards - Topic 179

Injury and death - Neck injuries - Soft tissue injuries - [See Damage Awards - Topic 71 ].

Practice - Topic 6931

Costs - General principles - Discretion of court - The British Columbia Court of Appeal held as follows: "In this case, the Rules provided for the trial judge to exercise his discretion to disallow recovery of disbursements. As with any exercise of discretion, it must be exercised 'judicially', in a principled and consistent way. It is inappropriate to invoke inherent jurisdiction to justify a decision that is contrary to the principles guiding the application of the Rules. There were no extenuating circumstances in this case that called for the trial judge to go beyond the Rules to find the discretion to deny disbursements. The power to do so is in the Rules, governed by the principles developed to guide discretionary decision-making" - See paragraphs 59 to 61.

Practice - Topic 7131

Costs - Party and party costs - Disbursements - General (incl. discretion of court) - [See Practice - Topic 6931 ].

Practice - Topic 7140

Costs - Party and party costs - Disbursements - Cost of reports - The trial judge disallowed the plaintiff the recovery of disbursements incurred in respect of expert reports prepared by Dr. Hahn - The trial judge's grounds were that the "factual premises of the reports were unsound" and that "in the circumstances, there was a duty to take some responsibility for the facts repeated in the reports" - The British Columbia Court of Appeal reversed the decision - The applicable test was whether the disbursement was reasonably incurred at the time it was incurred - In the present case, the disbursements in respect of Dr. Hahn's reports were reasonably incurred - See paragraphs 45 to 56.

Practice - Topic 7140

Costs - Party and party costs - Disbursements - Cost of reports - The trial judge disallowed the plaintiff the recovery of disbursements incurred in respect of expert reports prepared by Dr. Kuttner - The trial judge's grounds were that Dr. Kuttner's report was not an admissible medical opinion - The British Columbia Court of Appeal upheld the decision but on the following basis: "While it was not unreasonable to obtain an opinion from Dr. Kuttner, who was the [plaintiff's] treating psychologist, it should have been obvious to counsel, when Dr. Kuttner's opinion was obtained, that it would not be admissible because Dr. Kuttner did not have the qualifications to provide opinions on the appellant's medical treatment for pain. On that basis, incurring the expense for the report, at the time it was obtained, was not reasonable" - See paragraphs 45 to 58.

Practice - Topic 7140

Costs - Party and party costs - Disbursements - Cost of reports - The British Columbia Court of Appeal held that the principle in Van Daele v. Van Daele (B.C.C.A. 1983) remained the appropriate guiding principle for a trial judge in deciding under the Rules whether to deny disbursements for expert reports that were found, after a trial on conflicting evidence, to be inconsistent with the facts as found by the trial judge - The more general language of Rules 57(7) and 57(9) (one disbursement award here was made in 2009) did not exclude this principle - The question to be asked was whether it was reasonable to incur the disbursement when it was incurred, not after judgment had been rendered and it had been determined whether or not the report was helpful - See paragraphs 29 to 58.

Cases Noticed:

Marois v. Pelech et al. (2009), 272 B.C.A.C. 239; 459 W.A.C. 239; 95 B.C.L.R.(4th) 243; 2009 BCCA 286, refd to. [para. 13].

Naylor Group Inc. v. Ellis-Don Construction Ltd., [2001] 2 S.C.R. 943; 277 N.R. 1; 153 O.A.C. 341; 2001 SCC 58, consd. [para. 13].

Van Daele v. Van Daele (1983), 56 B.C.L.R. 178 (C.A.), folld. [para. 31].

Mathwig v. Bachmaier (1990), 51 B.C.L.R.(2d) 389 (C.A.), consd. [para. 31].

Stiles v. British Columbia (Workers' Compensation Board) (1989), 38 B.C.L.R.(2d) 307 (C.A.), consd. [para. 32].

Giles et al. v. Westminster Savings Credit Union et al. (2010), 287 B.C.A.C. 281; 485 W.A.C. 281; 2010 BCCA 282, refd to. [para. 33].

Bogardus v. Hill (1913), 28 B.C.R. 358, consd. [para. 37].

Bailey v. Victory (1995), 57 B.C.A.C. 23; 94 W.A.C. 23; 4 B.C.L.R.(3d) 389 (C.A.), refd to. [para. 48].

Webb v. Attewell et al. (No. 2) (1994), 50 B.C.A.C. 1; 82 W.A.C. 1; 100 B.C.L.R.(2d) 135 (C.A.), refd to. [para. 48].

Kailey v. Kellner, [2008] B.C.T.C. Uned. 107; 2008 BCSC 224, refd to. [para. 49].

Gemmell v. Reddicopp, 2003 BCSC 525, refd to. [para. 49]

Chen v. Beltran, [2011] B.C.T.C. Uned. 41; 2011 BCSC 41, refd to. [para. 49].

Buchan v. Moss Management Inc. (2010), 291 B.C.A.C. 278; 492 W.A.C. 278; 9 B.C.L.R.(5th) 276; 2010 BCCA 393, consd. [para. 59].

Oasis Hotel Ltd. v. Zurich Insurance Co. (1981), 124 D.L.R.(3d) 455 (B.C.C.A.), consd. [para. 59].

Lines v. Gordon et al. (2009), 268 B.C.A.C. 128; 452 W.A.C. 128; 2009 BCCA 107, refd to. [para. 59].

Counsel:

D.O. Shane and S.C.M. Yung, for the appellant;

L.P. Stevens, for the respondents.

This appeal was heard at Vancouver, B.C., on October 19, 2011, by Hall, Levine and Garson, JJ.A., of the British Columbia Court of Appeal. The decision of the Court of Appeal was delivered at Vancouver, B.C., on December 14, 2011, by Levine, J.A.