N.B. Court of Appeal orders payment of expenses used to establish causation in personal injury case

The New Brunswick Court of Appeal has dealt with a “matter of first impression” about how taxable expenses flowing from a motion for partial summary judgment should be assessed.

In Hunter v. Pinette, 2022 NBCA 27, the appellant suffered injuries in a February 2017 motor vehicle accident. She sued the respondent for damages arising from those injuries via filing an action for summary judgment in liability only under Rule 22 of the province’s Rules of Court.

The Court of Queen’s Bench, granting partial summary judgment, found that the respondent was liable for negligence and awarded the appellant the motion’s costs of $1,000 plus taxable disbursements.

The clerk of that court had to assess which of the disbursements were reasonable and necessarily incurred for the plaintiff to obtain summary judgment. The clerk denied several disbursements, which prompted the appellant to appeal.

The judge of the Court of Queen’s Bench accepted that a plaintiff would typically need a minimal amount of damages even at the summary judgment phase. The judge questioned whether the functional capacity evaluation – dated Nov. 25, 2019 and costing $2,600 – assisted in establishing causation. The other disputed disbursements should be determined via either trial or settlement, the judge then said.

The New Brunswick Court of Appeal allowed the appeal and ordered the respondent to pay the appellant taxable disbursements at $262.75.

The clerk should determine which medical disbursements were reasonable and necessarily incurred for the plaintiff to establish the element of causation for the tort of negligence, and should examine the medical records at issue while keeping this consideration in mind, the appellate court said.

On the other hand, the following factors were irrelevant – the moment when a document was obtained and the relative comparison of the amount of the disbursement claimed to the amount of costs awarded.

The appellate court noted that, in the context of a partial summary judgment solely on liability, not all incurred disbursements – including those strictly addressing the quantum of damages in an action for damages – would be taxable at this stage of the action.

Just because the incurred disbursements would only be payable after the adjudication of the settlement of damages, this did not mean that they would be within the scope of clause 2(14) of tariff “D” of Rule 59 after a summary judgment for liability only, the court added.

The appellate court decided, for expediency’s sake, to deal with each disputed disbursement that the lower court should have determined. It held that the following disbursements met the causation requirement and that their associated costs were reasonable and necessarily incurred:

• a doctor’s chart for the period from Dec. 16, 2010, to June 15, 2017, which included a diagnostic imaging report that clearly showed a connection between the accident and a comminuted fracture of the appellant’s right patella and which cost $10
• Foundation Health’s chart for the period from May 3, 2018, to Sept. 12, 2018, which contained an initial report that demonstrated a connection between the accident and pain from injuries and which cost $2.75
• a massage therapist report, which discussed treatment for injuries arising from the accident and which cost $150
• a physiotherapy report dated Jan. 10, 2020, which explained the appellant’s deficits arising from the accident and her subsequent surgery and which cost $100.

Regarding the functional capacity evaluation – which sought to assess the appellant’s physical functional abilities and limitations – the appellate court did not determine whether it was reasonable.

During the adjudication of the assessment of damages, the judge should decide whether the functional capacity evaluation would help quantify damages and whether the cost constituted a reasonable taxable disbursement, the appellate court concluded.