Hamfler v. Mink, 2011 CanLII 86201 (ON SC) - The Advocates' Society

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1/20/13 CanLII - 2011 CanLII 86201 (ON SC)preparation of their reports and attendance at trial. While I appreciate that plaintiff’s counsel may feel compelled to pay theaccount of an expert as submitted to them, that does not mean that the court will simply rubber stamp the expert’s invoice.The court requires something more than a list of disbursements.[25] If counsel expects the court to perform its function in assessing the reasonableness of an expert’s fee, there is anobligation on counsel to place before the court information that will allow the court to perform that function. The type ofinformation that would assist in this regard may include the amount of time spent by the expert in preparing the report andattending at trial (including preparation time) together with the hourly rate of the expert. As it relates to an expert’s hourlyrate, again, I would suggest this should not simply be a rubber stamp approach. The court should be provided (if it isavailable), with information from an expert’s governing body as to appropriate hourly rates. Alternatively, if this informationis not available, then comparable hourly rates of other experts in the same field may be of assistance. It may also be thecase that an expert, like a doctor, may have to cancel part or all, of his days schedule such as his patients. This would be arelevant factor in considering the reasonableness of the total fee charged by an expert.[26] In assessing the reasonableness of the claims for various experts in Robert v. Morana, supra, O’Brien J. hadbefore him, information about hourly rates and hours worked by the experts. The accounts were detailed and this allowedO’Brien J. to perform an appropriate assessment of the reasonableness of the claim made by the experts whose accountshad been paid by plaintiff’s counsel. None of this type of information was before me. I note that in 3664902 Canada Inc.et al v. Hudson’s Bay Co. 2003 CanLII 26101 (ON CA), 2003 CanLII 26101 (ON C.A.), the Ontario Court of Appealappears to have endorsed an approach that the assessment of disbursements including witness fees should be on the basis ofwhat was actually spent, reduced if appropriate to what is reasonably spent.[27] In this case a comparison of the amounts charged by comparable experts is very enlightening. Dr. Garber wasqualified as a clinical psychologist; Dr. Scherer as a vocational psychologist. Dr. Garber submitted invoices reflected on thelist of disbursements as follows: medical report $12,850 and court attendance/preparation $16,775.00. Dr. Scherersubmitted the following: medical report $3,350 and court attendance/preparation $4,020.53. When this discrepancybetween these 2 comparable experts-both called by the plaintiff, was brought to the attention of plaintiff’s counsel inargument, he had no explanation as to why such a substantial discrepancy was justified other than the obvious, this was theamount Dr. Garber had charged for his services. In the absence of any evidence as to why Dr. Garber’s invoices should beviewed differently than Dr. Scherer’s, I have simply allowed $4,500 for Dr. Garber’s report and $4,000 for his attendanceand preparation for trial.[28] The plaintiff’s list of disbursements included costs incurred with Dr. Henry Berry. These included $4,500 for areport and $3,000 for court attendance. Dr. Berry is a very well known and eminently qualified expert in the field ofneurology, internal medicine and psychiatry. At the beginning of the trial, plaintiff’s counsel sought to call more than 3 expertwitnesses. While the plaintiff was allowed to call more than 3 experts, I disallowed the evidence of Dr. Berry as hisevidence was largely going to overlap with the evidence of Drs. Garber and Scherer. Counsel cannot simply assume thatthe court will allow for the calling of more than 3 experts; this is particularly so today when trial judges are constantlyreminded of how the costs of litigation are so high. If counsel takes the risk of engaging the services of more than 3 experts,he or she cannot assume that those costs will ultimately be borne by the losing party. Only if leave is granted to call morethan 3 experts and an expert is then called at trial will those additional costs become assessable as reasonable. In this case,Dr. Berry was not allowed to testify and as such none of his costs are a reasonable disbursement that the defence shouldhave to pay for.[29] I then move to the disbursements of Dr. Berbrayer and the life care planner or future care expert Ms. Nowitz. BothDr. Berbrayer and Ms. Nowitz work through the auspices of a company called MDAC. Unfortunately, the list ofdisbursements does not provide much assistance as to what the MDAC invoices specifically relate to. The total claimed forMDAC comes to $15,568. In addition, the list of disbursements provides for the following: Dr. Berbrayer’s medical report$1,275, Dr. Berbrayer court attendance/preparation $4,020.53. There is also a disbursement for MDAC, LaurianNowitz’s - court attendance/preparation $1,275. The total for MDAC, Dr, Berbrayer and Ms. Nowitz comes to $22,518.I have no difficulty with the amounts claimed for Dr. Berbrayer’s report of $1,275, nor do I have any difficulty with his courtcanlii.org/en/on/onsc/doc/2011/2011canlii86201/2011canlii86201.html 6/9
1/20/13 CanLII - 2011 CanLII 86201 (ON SC)attendance of $4,400. Similarly, I have no difficulty with the court attendance for Ms. Nowitz of $1,275. I have beenprovided with little to no assistance with respect to the additional time claimed by MDAC totalling $15,568. I appreciatethat some of those costs may have included time responding to defence reports and updating reports. I have been givennothing to properly assess the reasonableness of those additional MDAC charges. If counsel wants the court to assessthese types of charges then counsel must put before the court what these charges were for and how the amount has beencalculated. At the very least there should be information about the time spent and hourly rates. The court expects this fromthe lawyers in relation to their claim for partial or substantial indemnity costs. I see no reason why we should not expect thisfrom an expert. Doing the best that I can with the limited information available, I have allowed $10,000 for the MDACcharges.[30] I have briefly touched on the charges of Dr. Scherer. These were for a report that was invoiced at $3,350 andcourt attendance of $4,020.53. When compared with the invoiced charges of Dr. Garber at $12,850 and $16,775 for hisreport and court attendance, I have no difficulty allowing the claims for Dr. Scherer, although it would again be helpful tohave more information about what time Dr. Scherer spent on his report together with his hourly rate.[31] This then leaves a number of smaller items on the list of disbursements. A claim is made to summons the variousexperts retained by the plaintiff to give evidence in this matter. While in the normal course, it is expected that a witness willbe under summons to ensure their attendance at trial, it does not seem reasonable that the losing party should be paying forthe costs of summonsing one or all of the plaintiff’s experts. These experts have been retained and are being paid by theplaintiff to provide their evidence at trial. They should be expected to attend when called and a summons should not berequired. Only in situations where counsel can show that a summons was reasonable would this type of disbursement beconsidered a reasonable disbursement. I have therefore disallowed the costs claimed for summonsing the plaintiff’s experts.[32] The plaintiff included in his list of disbursements an item for “Threat Ready” in the amount of $1,679 for “expert casepreparation”. I was provided with no information as to what this related to or any information as to why this was areasonable disbursement. Assuming this relates in some way to the preparation of the various experts, I can only suggestthat this surely is the responsibility of counsel. Counsel is entitled to assess a reasonable amount for preparing for trial whichwould include meeting with and preparing his or her experts. In the absence of some compelling reason to the contrary, Ifail to see how the disbursement for “expert case preparation” can be considered reasonable.[33] The list of disbursements included an item for “Designable Environments”- “Future Care Assessment”. I havealready allowed an amount for the life care planner/future care expert Ms. Nowitz. No evidence was called throughDesignable Environments. This is not a proper disbursement. The plaintiff also claimed for the cost of a limousine service totransport Dr. Berbrayer and Ms. Nowitz to court. In the overall scheme of things the total for these services of $506 is arelatively small part of the total disbursement claim of approximately $93,000. Nonetheless, whether the claim is small orlarge it must still be seen as reasonable before the losing side should be asked to pay for it in a costs award. There isnothing to suggest that either Ms. Nowitz or Dr. Berbrayer did not have their own personal vehicle to get to court. In theabsence of such evidence that might then justify a limousine service or taxi, I am allowing a reasonable mileage charge forboth experts of $80 each.[34] As previously noted, the plaintiff submitted a list of disbursements totalling approximately $93,000 inclusive of GSTand HST. For the reasons set forth above, I have allowed a total of $51,000 for the plaintiff’s disbursements which isinclusive of GST and HST.LEGAL FEES[35] I have already commented briefly on the plaintiff’s bill of costs as it relates to the claim for legal fees. In total a claimis submitted for $87,680 plus HST of $10,400 for a total of $99,078.40. The claim as submitted was on a partial indemnitybasis. The bulk of the time claimed related to the services of Mr. Laing who is a 2005 Call to the Bar. His hourly rateclaimed was $200 per hour. In total Mr. Laing claimed 326 hours at $200 per hour or $65,200. Smaller amounts werealso claimed for other counsel in Mr. Laing’s firm. This is not a case where it can be said there was an “overlawyering” ofthe file. The time spent does reflect there was some excess of preparation time but, on the other hand it can be said that thecanlii.org/en/on/onsc/doc/2011/2011canlii86201/2011canlii86201.html 7/9
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Hamfler v. Mink, 2011 CanLII 86201 (ON SC) - The Advocates' Society

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