In Tran v Ozee 2024 BCSC 208 Associate Judge Robertson interpreted a new Regulation in British Columbia regarding disbursements for a physiatry report and a functional capacity evaluation (“FCE”).
The new Regulation (the Disbursements and Expert Evidence Regulation BC Reg 210/2020) was amended effective 27 November 2023 to implement both a 6% rule for recovery of disbursements and to require a party to bring an application to tender more than 3 expert reports in an action at the same time as an application to exclude disbursements from the 6% limit.
Robertson AJ found that the necessity for a physiatry report was established but for an FCE was not, and he adjourned the application to exempt the cost of that report from the 6% rule pending receipt of the physiatry report. The plaintiff was 23 at the time of the accident and will be 28 at the time of the scheduled trial. She had continued to work, which raised questions as to the necessity of an FCE.
The appropriate test to be used for necessity was found to be “somewhere between” two other tests:
- The test is higher than the relatively low threshold of being reasonably necessary at the time it was incurred (the test for whether a disbursement should be allowed on a bill of costs); and
- The test is lower than requiring evidence of necessity to prove a specific issue, to ensure a fair trial on the merits and not for the purpose of bolstering expert evidence (the test found to be used on an IME or DME application).
To establish necessity there must be some evidence the proposed disbursement will enable a party to address a specific issue, and that there would be prejudice if that evidence were not obtained. The overall result was required to be in the interests of justice, which required a balance between a fair trial on the merits and the evidence led at trial, without disproportionately increasing costs.
There are at least 13 known cases on this new Regulation already in B.C., all of which have been decided by Associate Judges (who were previously called Masters). A notice of appeal has been filed in this case, so it may be a matter of time before an appellate decision of a Judge provides additional clarity to the proper interpretation of this new law.
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