Carfra Lawton LLP | Victoria BC

Time fees charged by professionals called as fact witnesses are not recoverable as disbursements

In Luis v. Marchiori, 2018 BCCA 317, the Court of Appeal affirmed a Registrar’s decision that fees charged by expert professionals for their time when called to provide fact evidence (as opposed to opinion evidence) at trial are not recoverable as disbursements under the tariff. The appellant plaintiff had paid $2,651 in such fees to her physician, and sought to recover them from the defendant as a disbursement under the Civil Rules. The Rules prescribe witness fees of $20 per day or part of a day, in addition to reasonable travel and meal allowances, for non-party witnesses. The Rules also provide for expert opinion witnesses appointed by the court to be remunerated “an appropriate sum for each day that the expert’s attendance in court is required.”

The appellant plaintiff argued that it was proper to also remunerate fact witness professionals, for their time spent testifying. She argued that some professionals, such as doctors and engineers, are frequently called upon to testify in judicial proceedings due to their professions, and therefore bear an unfair burden to discharge their civic duty to testify when called upon in judicial proceedings.

The Court noted the distinction between a witness called to give opinion evidence and one called to testify to facts that he or she has observed. A fact witness need not do anything further in order to relay his observations. In contrast, an expert witness must take steps to acquire the opinion evidence that will assist the court in resolving a dispute. The party wishing to obtain that evidence must contract with the expert and pay him or her to engage in the work necessary to produce the opinion, prepare a report and, if required, to testify to that opinion at trial. Payment to an expert opinion witness is thus a necessity.

The Court also noted that while some professions are more regularly called upon to testify in court than others, it is not readily apparent that particular individuals are called upon more often. Furthermore, it is too narrow to focus on the potential financial hardship to such professionals, observing that the loss of a day’s work at minimum wage (for a non-professional fact witness) may be a greater relative hardship than the loss of a professional person’s earnings.

In the result, the Court noted that in prescribing a fixed witness fee the legislature has demonstrated its intention to compel a witness’ attendance at trial – and thus the performance of every citizen’s civic duty to testify when called upon in judicial proceedings – regardless of occupation. Any departure from this tradition was a matter for the legislature and not for the judiciary to effect.

Case summary by Karl Roemer