Carfra Lawton LLP | Victoria BC

A Difficulty with Challenging Disbursements

The reasons in Zhang v Heikkila 2013 BCSC 2275 were recently published. This BCSC decision highlights the difficulties that a defendant can face when challenging plaintiff disbursements.

The plaintiff sustained soft tissue injuries and some cognitive difficulties after falling and striking her head while riding a bus.  Two years after the accident the plaintiff’sfamily physician provided a report on the injuries and continuing disability. Six months later the plaintiff obtained a physiatrist’s report opining on the plaintiff’s level of function, prognosis and recommendations. An updated report from the family physician was obtained a further nine months later confirming the plaintiff’s ongoing problems and an unchanged prognosis. Trial was set for one year after the final report but the matter settled within a month of that report. The plaintiff did not serve any of the three reports.

The defendants submitted that as liability was a significant hurdle, counsel properly preparing the case would have delayed incurring these expenses until closer to trial. Apparently plaintiff’s counsel had concluded after discovering a representative of the defendants that liability would be difficult to prove.

District Registrar Cameron allowed the disbursements on the basis that competent counsel had obtained timely medical opinions. The Registrar found that he ought not second guess competent counsel doing a competent job simply because other counsel might have handled the matter differently. This case highlights how difficult it is to avoid disbursements for medical legal reports on the basis of necessity, even in a case with trial more than a year away, liability in question and the reports never having been served.

Case review prepared by: Brian Hoffman