[28] The primary objection to the fees sought by Meaghan Dunk is that the time spent is excessive having regard to the comparative time spent by the defendants’ lawyers on the file, with the litigation being equally complicated for each side, and the number of lawyers assigned to the case being equal. The defendants’ counsel has provided the Court with a Bill of Costs reflecting fees of $251,190 inclusive of HST. Ms. Teal provided a comparison of the amount of time spent by each firm for file handling, trial preparation and attendance, and all clerk and articling student involvement, showing total hours for the plaintiff’s file of 1,600 and total hours for the defendants’ file of 903 hours.
[29] The problem with such a comparison is that it fails to recognize the additional work that accompanied the onus that rested on the plaintiff to prove her claims. This included the issue of liability, which was not settled until three days before the commencement of trial. Until liability was settled, the plaintiff had to expend time on those aspects of her case, including the preparation of many liability witnesses. And as is usual in personal injury litigation, the plaintiff provided significantly more evidence than the defendants on the issue of damages. As recognized by Wilson J. in Hoang v. Vicentini, 2014 CarswellOnt 14913 (S.C.J.), at para. 78 “the Plaintiff must build the case before the jury and this requires expending more hours than the defendants have to do to defend the case.” In the case before me, there is nothing surprising about the amount of hours expended by the plaintiff’s lawyers to complete the trial, or that the hours involved were almost twice that of the defendants’ lawyers.
[36] The disbursements sought for Meaghan Dunk total $152,039.94. There were numerous challenges to the disbursements. It is clear that several items were included that are simply office overhead costs that should not be passed on to the defendants: stationary supplies, internet searches and emails, long distance charges, CDs, postage, and a banking fee for a stop payment, but none of these are significant amounts. The amount of $21,900 has been charged for photocopies, without no indication of the cost per page. There are several payments shown to experts that have no supporting invoice: a charge for MEA in the amount of $1,267.50; a charge for Dr. Waseem at $4,900, and a charge for supplementary reports from Dr. Daniels in the amount of $530. The defence also takes issue with a charge of $8,000 paid to Dr. Stephen, who did not testify as a Rule 53 expert, and total charges of $3,850 to Dr. Zakzanis, a psychologist, whose reports were not used because psychological issues were not pursued at trial. Other objections include charges totalling $1,480 for preparing Dr. Springle for trial, a fee paid to a witness who did not attend, a cancellation fee of $1,750 paid to the chiropractor whom the plaintiff did not call as a witness, and a charge for a functional abilities evaluation in the amount of $750 that was not produced to the defendants. A significant amount associated with medical illustrations is included in the disbursements. The defendants request that a reduction equivalent to the amount of $2,995 be made because two of the five drawings were not permitted to be used in front of the jury. Also in issue is an amount paid for court transcripts during the trial in the amount of $2,178, which the case law indicates should only be included as a disbursement in exceptional circumstances where the need for real-time reporting is justified: Romfo v. 1216393 Ontario Inc., 2008 Carswell BC 840 (B.C.C.A.).
