REASONS FOR DECISION

1.  INTRODUCTION

[1]  This decision concerns to what extent an expropriating authority which takes an owner’s residential property must reimburse the owner for relocation costs. While the answer to this question on its face seems fairly straightforward in light of the governing legislation, it is complicated in the present instance by a number of novel issues.

[2]  The claimants, Danny James Topping and Tina Marie Topping, were the registered owners in fee simple of property located at 3355 Trans Canada Highway, Cobble Hill, on Vancouver Island, British Columbia. They had purchased the property, which was improved with a residence, in 1991, and lived there with their two young children for approximately the next seven years. Mr. Topping is a self-employed automobile upholsterer and his mechanical and upholstery shop was also located on the property.

[3]  In the late spring of 1998, the respondent, Her Majesty the Queen in right of the Province of British Columbia as represented by the Minister of Transportation and Highways (the "Ministry"), advised the Toppings that it required their property for the purpose of making improvements to the adjacent Trans Canada Highway as part of a development known as the Vancouver Island Highway Project. On August 6, 1998, the parties concluded an agreement pursuant to section 3 of the Expropriation Act, R.S.B.C. 1996, c. 125 (the "Act"), under which vacant possession of the property would be provided to the Ministry on September 5, 1998, and compensation payable to the Toppings would be determined by the board. Under a section 3 agreement, the board must determine the compensation to be paid as if the property had been expropriated. For ease of reference in this decision, the Ministry’s acquisition will often be referred to as the "expropriation" or the "taking".

[4]  Since the Toppings had to vacate their property in Cobble Hill, they decided to relocate to Cranbrook, British Columbia, a community situated in the southeastern region of the province, roughly 900 kilometres distant by road from where they lived. Between the months of August and October, 1998, they moved nearly all of their belongings to Cranbrook and purchased a residential property there. Mr. Topping re-established his mechanical and upholstery shop on the Cranbrook property. Mrs. Topping became both a part-time student working with computers and a facilitator at a local learning academy, established her own tutoring business, and was also employed with a cable system company in Cranbrook.

[5]  Ministry made advance payments to or on behalf of the Toppings in respect of its acquisition totalling $176,700. On August 11, 1998, it provided to their solicitors in trust a cheque for $20,000. On September 11, 1998, it provided to them a further cheque in trust in the amount of $56,942.27, and a cheque in trust to the solicitors for the mortgagees of their Cobble Hill property in the amount of $99,757.73. The Ministry allocated these advance payments in the following manner:

The parties are agreed that the amount of $280 allocated to appraisal costs should be treated as an advance payment of costs pursuant to section 48 of the Act. The net advance payments for purposes of section 20 of the Act therefore total $176,420.

[6]  Toppings filed an application for determination of compensation (the "Form A") with the board on August 10, 1999, and an amended Form A at the outset of the compensation hearing. In both the Form A and the amended Form A, they accepted the foregoing payments in satisfaction of most of their claims. Specifically, they accepted the Ministry’s valuation and payment of $162,000 with respect to the market value of the Cobble Hill property, the payments of $1,620 (calculated at 1% of the market value of the taking) with respect to the property transfer tax toward the purchase of replacement property, $8,100 (calculated at 5% of the market value of the taking) with respect to the owner-occupier’s allowance provided for in section 38 of the Act, and the payment of $200 in relation to the fees they incurred for discharge of the mortgage encumbrance on the Cobble Hill property. No claim was asserted with respect to Mr. Topping’s auto upholstery business conducted from the property.

[7]  What principally remains to be determined by the board is the Toppings’ claim for disturbance damages for the costs they allege were necessarily and reasonably incurred by them in vacating the expropriated Cobble Hill property and in relocating to the Cranbrook property, including moving, legal, survey and other costs. Exclusive of property transfer tax and mortgage discharge fees, the relocation costs are claimed at $13,663.01. When those portions of the Ministry’s advance payments under section 20 which were allocated as a conveyancing allowance and a moving and temporary storage allowance are deducted from the total claim, the Toppings’ net claim is for $9,163.01. Additionally, the Toppings seek reimbursement for costs and interest pursuant to sections 45 and 46 of the Act.

[8]  The compensation hearing in this matter commenced in Vancouver on October 31, 2000. Mr. and Mrs. Topping provided sworn affidavits deposing as to the details of their relocation to Cranbrook. Both also testified on their own behalf. Cameron J. Macleod, who at the relevant time was a property acquisition co-ordinator for the Vancouver Island Highway Project, testified for the Ministry. All of the evidence was concluded in one long hearing day. The hearing reconvened on the afternoon of July 17, 2001, for final submissions, and was conducted by teleconference. I heard this matter alone in my capacity as chair of the board and in exercising the powers and jurisdiction of the board under section 26(5) of the Act.

2.  THE CLAIM FOR RELOCATION COSTS

2.1  The Background

[9]  The evidence indicates that the Ministry first approached the Toppings in connection with its highway improvement project in early May, 1998. Two property negotiators for the Ministry were involved: Randy Colbert, who held several meetings and telephone discussions with either Mr. Topping or both Mr. and Mrs. Topping during the month of May and again in late June, and David Wood, who assumed primary responsibility for the file in early June, through the months of July and August, and into early September, 1998. He also had numerous conversations with the Toppings. Discussions initially focused on the prospect of taking an approximately three metre wide strip of the Toppings’ property lying adjacent to the highway. However, it soon became apparent that the proposed partial taking would interfere with the drainage field for the septic system servicing the property. By early June the Ministry had concluded from its investigations and inquiries that relocation of the drainage field might not be possible. By at least the middle of June, 1998, discussions therefore shifted to considering the terms for a total acquisition of the property, necessitating a relocation by the Toppings.

[10]  Both parties retained real estate appraisers to estimate the market value of the Cobble Hill property, and the Toppings also retained the legal services of J. Bruce Melville, of the law firm Peterson Stark (later Peterson Stark Scott), to represent them in negotiations which ultimately led to the section 3 agreement in early August, 1998 and the making of the advance payments in August and September of that year. Peterson Stark continued to represent the Toppings thereafter.

[11]  was evidently some sense of urgency on the part of the Ministry in obtaining possession of the Cobble Hill property in order to begin construction. Mr. Macleod for the Ministry testified under cross-examination that, among other things, the scheduling had to accommodate what he called an "environmental window" made necessary by fisheries concerns related to an open watercourse on or near the property. The Ministry initially aimed to take vacant possession by early or mid-August, 1998, and ultimately agreed to a possession date of September 5, 1998.

[12]  Toppings testified that for a considerable period of time they had been attracted to the idea of moving to the community of Cranbrook through which they had passed on their travels. Mr. Topping said he was a "country person" who liked to hunt and fish. Mrs. Topping thought the Cranbrook area was pretty, the cost of living was lower, and the weather was better than on Vancouver Island or the Lower Mainland. Furthermore, she stated, Cranbrook was something of a commercial hub situated near the border with the United States in which her husband could carry on his auto upholstery business drawing on the cross-border antique car trade. However, the Toppings also both testified that their plan for relocation was long-term, that they figured it would take 10 years to improve the Cobble Hill property for a proper re-sale, and that, but for the Ministry’s taking in 1998, they would not have contemplated a move for the next three or four years.

[13]  Now faced with the prospect of having to vacate their Cobble Hill property, the Toppings settled on Cranbrook as their only relocation destination of choice. They requested estimates from two moving firms of the cost of transporting their belongings there. Victoria Van & Storage Co. Ltd., in its moving estimate dated June 23, 1998, quoted a total amount of $11,342 including GST. Bekins Moving & Storage, in its proposal dated June 24, 1998, quoted $8,925.94 including GST. Both of these moving estimates were provided at the time to Mr. Colbert, the Ministry’s property negotiator. Additionally, the Ministry through Mr. Colbert obtained its own estimate of costs for moving the Toppings from Cobble Hill to Cranbrook from a firm known as Movco. Its quote, faxed to Mr. Colbert on June 25, 1998, was for $7,450 plus GST. The Toppings were not made aware by the Ministry of the Movco estimate at the time.

[14]  Both Mr. and Mrs. Topping testified that they were given assurances by Mr. Colbert and possibly by Mr. Wood that, among other things, the Ministry would pay all of their moving costs and legal expenses associated with the relocation to Cranbrook. At no time, they said, were they told that it was unreasonable to expect that their costs of relocating to Cranbrook would be fully compensated.

[15]  Nevertheless, the Toppings ultimately decided to do most of the moving themselves in order, as they described it, to save costs. They contracted with Movco to take one load of their household belongings to Cranbrook at the cost of $2,672 in late August, 1998. Additionally, they made three separate trips to Cranbrook in August, September, and October, respectively, on each occasion bringing with them further of their goods and belongings.

[16]  For the first trip to Cranbrook in early August, the Toppings rented a U-Haul in order to be able to transport one of the five vehicles (mostly vintage cars) they eventually brought with them. They travelled on a direct route along the southern interprovincial highway. During their stay in Cranbrook, they also searched out replacement property to purchase. They testified that they made an offer on a house while they were there, but that the deal fell through since they were unable to come up with the necessary cash deposit, a circumstance which they attributed to the Ministry’s not making its initial advance payment to them in time. They returned to Cobble Hill on or about August 18, 1998, and proceeded with the packing and move out.

[17]  For the second trip to Cranbrook in early September, the Toppings utilized three vehicles all loaded with their belongings. Mr. Topping had brake repairs made to a five-ton truck he had recently purchased and drove it to Cranbrook. Mrs. Topping drove the family car containing their two children. A friend, Sean Gerela, drove the third vehicle, a half-ton pickup truck. On this trip they travelled a more circuitous but less mountainous route to Cranbrook along the Trans Canada Highway by way of Cache Creek out of concern for the safety of their heavily loaded vehicles. Enroute they encountered mechanical breakdowns, particularly to the five-ton truck, which required the cost of repair.

[18]  Arriving in Cranbrook, the Toppings again searched for a suitable replacement property. They located one to their liking at 2325 King Street. They described it as a 2.4 acre triangular parcel on a quiet road near a creek, improved with a mobile home residence and outbuildings. They negotiated a purchase price of $72,900. However, in order to secure financing for the purchase, the Toppings said they were required to use a mortgage broker and to have the mortgage insured through CMHC. The Toppings explained that, because they had not as yet established credit in the Cranbrook area, the mortgagee insisted on having the mortgage co-signed by Mrs. Topping’s parents. In fact, on completion of the purchase, the Cranbrook property was registered in the names of the Toppings as to an undivided one-half interest as joint tenants, and Mrs. Topping’s parents as to an undivided one-half interest as joint tenants. The Toppings incurred legal conveyancing costs as well as the costs of a survey and well water test in connection with the purchase. There was also a property tax adjustment on completion. Additionally, various small incidental expenses associated with utility hookups and change of address were incurred.

[19]  Because the Toppings were unable to obtain possession of their new Cranbrook property until the beginning of October, 1998, they rented motel accommodation for themselves and their family for three weeks in September. They also placed the belongings they had brought with them on their first two moving trips in commercial storage in Cranbrook for the interim period.

[20]  In early October, 1998, Mr. Topping made one last return trip from Cranbrook to Vancouver Island in order to retrieve another load of belongings from the Cobble Hill property as well as one vehicle which had been left behind and towed from the property. The Toppings stated that there was still a load of their belongings remaining at the home of Mrs. Topping’s parents in Duncan, B.C., but they were making no additional claim in respect of it.

[21]  Both Mr. and Mrs. Topping were asked during cross-examination whether they had claimed a deduction for moving expenses on their personal income tax returns. Neither could recall having done so.

2.2  Particulars of the Claim

[22]  Section 34(1) of the Act provides:

	34	(1)	An owner whose land is expropriated is entitled to disturbance damages consisting of the following:
			(a)	reasonable costs, expenses and financial losses that are directly attributable to the disturbance caused to the owner by the expropriation;
			(b)	reasonable costs of relocating on other land, including reasonable moving, legal and survey costs that are necessarily incurred in acquiring a similar interest or estate in the other land.

[23]  The Toppings in their affidavits set out the costs of vacating the Cobble Hill property and relocating to the Cranbrook property under each of the following heads:

			Amount	Subtotal
	(1)	Moving & Storage:
		Movco	$ 2,672.00
		Williams Moving & Storage	407.93
		Cranbrook RV & Mini Storage	53.50
		U-Haul	233.58
		Hi-Point Auto	160.50
		P.R. Western Truck	560.53
		Vehicle Repairs	476.78
		Driver for Vehicle (Mr. Gerela)	1,200.00	$ 5,764.82
	(2)	Legal:
		Legal fees (Cranbrook property)	1,102.47
		Notarization (Cobble Hill property)	57.00	1,159.47
	(3)	Survey:
		Cranbrook property	321.00	321.00
	(4)	Other Costs:
		B.C. Ferry Corp.	615.30
		Meals	246.40
		Gas	935.74
		Lodging	1,365.08
		B.C. Hydro/B.C. Tel transfers	55.00
		Canada Post	32.10
		Couriers	38.08	3,287.70
	(5)	Purchase of Cranbrook Property:
		Tax adjustment	136.12
		Mortgage broker	1,337.50
		CMHC approval fee	75.00
		Columbia Electric Ltd. (well test)	156.40
		Tax account holdback	225.00
		Mortgage insurance	1,200.00	3,130.02
	Total:			$13,663.01

[24]  The Toppings placed in evidence receipts or other supporting documentation for all of the foregoing items except for two B.C. Ferry trips the cost of which they said amounted to $410.20. Their claim includes the cost of those two trips, the receipts for which they stated they were unable to locate.

2.3  The Issues

[25]  The parties in the course of their submissions raised the following issues for determination by the board:

	•	Have the Toppings proven that they actually incurred the relocation costs claimed?
	•	Are the costs claimed relocation costs within the meaning of section 34(1)(b) of the Act and, if not, are they otherwise compensable as disturbance damages?
	•	Are the relocation costs claimed "reasonable" and "necessarily incurred" within the meaning of section 34(1)(b)?
	•	In any case, is the Ministry estopped from asserting that it should not have to reimburse the Toppings for their actual relocation costs to Cranbrook on the basis of any representations made?
	•	Are any of the relocation costs claimed covered by the 5% owner-occupier’s allowance paid by the Ministry to the Toppings pursuant to section 38(1) of the Act?
	•	Does the fact that the Toppings acquired only an undivided one-half interest in the Cranbrook property affect their claim for relocation costs?
	•	Did the Toppings have a duty to mitigate their losses by claiming moving expenses as a deduction on their personal income tax returns?

2.4  The Toppings’ Position

[26]  The Toppings submit that the documentary evidence which they provided clearly demonstrates that the relocation costs claimed were actually incurred by them. Furthermore, they are properly categorized as relocation costs. Although section 34(1)(b) of the Act provides for the reasonable cost of relocating on other land, "including reasonable moving, legal and survey costs", the Toppings argue that this list is not exhaustive. Moving, legal and survey costs are only three examples of the types of relocation costs that are recoverable, and other costs not specifically enumerated may nevertheless qualify under that head. They cite several decided cases from other jurisdictions to support both the scope and reasonableness of their claims.

[27]  The Toppings also submit that the relocation costs claimed were necessarily incurred as a direct consequence of the expropriation of their residential property in Cobble Hill. The Ministry required their property on an urgent basis, and they had no choice but to find a new residence and relocate to other land without delay. But for the taking, the Toppings in 1998 would not have had to incur any of the moving, legal and survey costs or other expenses such as those for transportation, storage and mortgage financing. They point out that there is nothing in section 34 of the Act which sets out any geographic restrictions around relocation. It does not qualify an expropriated owner’s entitlement to moving costs other than to specify that such costs must be reasonable and attributable to the expropriation. The Toppings’ decision to relocate to Cranbrook was reasonable, they say, and the evidence demonstrates that they went about making the move in a responsible way, endeavouring to save costs at every turn. Incidental to purchasing a replacement property in Cranbrook, the Toppings say they incurred mortgage and related expenses which were unavoidable in the circumstances.

[28]  Although the Toppings qualified for and received from the Ministry an owner-occupier’s allowance under section 38(1), they maintain that receipt of the allowance in no way precludes them from claiming in addition all of their reasonable relocation costs as disturbance damages under section 34(1).

[29]  In the alternative, the Toppings submit that, even if they were not otherwise entitled to their relocation costs or those costs were found to be unreasonable, they should be entitled to be fully compensated for all of their moving, storage, legal and other costs because of representations made to them in that regard by at least one of the Ministry’s property negotiators. The Toppings refer in particular to the early express assurances they say were provided to them by Mr. Colbert that all expenses relating to their move to Cranbrook would be reimbursed. There was no evidence, they point out, that the Ministry’s representatives ever indicated to them or their legal counsel at any relevant later time that the move to Cranbrook was unreasonable or that the Ministry would not fully pay for it. The Ministry’s silence on the point constitutes a further representation upon which they say they relied to their detriment in undertaking their relocation. The Toppings therefore look to the doctrine of estoppel and cite case authority, including a decision of the board, in support of their alternative position.

2.5  The Ministry’s Position

[30]  The Ministry’s position is that the Toppings have been fully compensated for any reasonable relocation costs they incurred by the allowances paid to them on account of conveyancing, moving and temporary storage which totalled $4,500. The Ministry also argues that some of the other costs claimed were intended to be covered by the 5 per cent owner-occupier’s allowance under section 38(1) of the Act in respect of which the Toppings received an additional $8,100.

[31]  For the most part, the Ministry does not take issue with the Toppings’ assertion that they actually incurred the costs claimed. It does, however, question whether certain items, such as brake repairs to Mr. Topping’s five-ton truck, were directly attributable to the expropriation, and whether the payment of $1,200 to Mr. Gerela, who assisted with the move, was bona fides or reasonable.

[32]  The larger issue for the Ministry is whether the Toppings’ decision to relocate to Cranbrook was reasonable in the first place in the sense that so distant a move was one for which they could reasonably expect to be fully compensated. The Ministry asserts that some geographical limits must be placed on what constitutes the "reasonable costs of relocating on other land". Furthermore, where as here the owners who were known in their local community but incurred some additional costs because they had not established a credit history in their new location, the Ministry questions whether such costs should be reimbursed as "necessarily incurred". The Ministry points to the evidence that it had long been the intention of the Toppings to relocate to Cranbrook in any case, and submits that the Ministry’s acquisition of their Cobble Hill property simply accelerated the move. In now seeking full reimbursement for the move, the Ministry suggests, the Toppings are in effect asserting a claim on the principle that they are entitled to "a home for a home". Although this principle is enshrined in expropriation legislation in some other provincial jurisdictions, it is not applicable in British Columbia under the Act.

[33]  The Ministry also raises two other issues which it says are germane to the Toppings’ claim. For one, it points out that compensation is available to expropriated owners under section 34(1)(b) for reasonable relocation costs necessarily incurred "in acquiring a similar interest or estate in the other land". In the present instance the evidence is that, although the Toppings held a fee simple interest in joint tenancy in the Cobble Hill property, they acquired only an undivided one-half interest in joint tenancy in the Cranbrook property. This fact leads the Ministry to suggest that, at best, the Toppings should only be entitled to half of their relocation costs. For another, the Ministry argues that the Toppings had a general obligation to mitigate their losses, but in evidently not claiming a deduction for moving expenses in their personal income tax returns, they failed to meet that duty.

[34]  The Ministry submits that the Toppings’ alternative argument founded on estoppel is unsupported by the evidence and fails to satisfy the elements required. It characterizes the argument as tantamount to asserting a new head of claim in order to oust the onus which is on the Toppings to prove the reasonableness of their relocation costs. Although Mr. Colbert at least knew about the Toppings’ plan to relocate to Cranbrook, the Ministry says the evidence does not support their testimony that any assurances or inducements were given. Equally, there was no evidence that the Toppings decided to move there because they thought their moving expenses were going to be fully paid. According to the Ministry, the fact that the Toppings went to some lengths to minimize the cost of their move is inconsistent with the notion that they were relying on a representation that any and all costs would be reimbursed.

2.6  Discussion

[35]  Notwithstanding the order in which I set out the issues to be determined, I believe it will facilitate my discussion if I deal first in turn with the questions of estoppel, mitigation, the interest acquired in the replacement property, and the owner-occupier’s allowance, before addressing the broader questions of whether the relocation costs claimed were actually incurred, are compensable under the Act and, if so, were reasonably and necessarily incurred.

2.6.1  The Estoppel Issue

[36]  The essential factors giving rise to an estoppel are set out in the judgment of Gibbs J. (as he then was) in Cominco Ltd. v. Canadian Pacific Ltd., [1988] B.C.J. No. 526 (B.C.S.C.), at p. 3:

	(1)	A representation or conduct amounting to a representation intended to induce a course of conduct on the part of the person to whom the representation is made.
	(2)	An act or omission resulting from the representation, whether actual or by conduct, by the person to whom the representation is made.
	(3)	Detriment to such person as a consequence of the act or omission.

[37]  In Hansen v. British Columbia (Minister of Transportation and Highways) (2000), 70 L.C.R. 1, the British Columbia Court of Appeal upheld a decision of this board involving the issue of promissory estoppel (reported at 65 L.C.R. 127). Mackenzie J.A., writing for the Court, stated as follows at p. 3:

The law applicable to this situation, in terms of estoppel, was discussed by the Supreme Court of Canada in Maracle v. Travellers Indemnity Co. of Canada, [1991] 2 S.C.R. 50, 80 D.L.R. (4th) 652. In that case Mr. Justice Sopinka summarized the principles of promissory estoppel in these terms (at p. 57):

The principles of promissory estoppel are well settled. The party relying on the doctrine must establish that the other party has, by words or conduct, made a promise or assurance which was intended to affect their legal relationship and to be acted on. Furthermore, the representee must establish that, in reliance on the representation, he acted on it or in some way changed his position. (further citation deleted)

[38]  In the present instance, the Toppings invoke the estoppel principle on the basis both of representations said to have been made to them by one or both of the Ministry’s property negotiators and by what they say was the Ministry’s subsequent silence on the subject of their plans to relocate to Cranbrook.

[39]  Although estoppel was advanced by the Toppings as an alternative argument, Ministry’s counsel took the view that, if it succeeded, it would "trump" any other argument concerning, for example, the reasonableness of the costs claimed. If that is indeed the case, then it warrants having this issue dealt with first.

[40]  The Toppings did not plead estoppel in their Form A or amended Form A. The issue first arose during the opening statement by their counsel and evidently came as a surprise to the Ministry’s counsel. I allowed the argument to go forward, conscious of the fact that the Ministry, short of seeking an adjournment, had little time to respond to the new allegation. Neither Mr. Colbert nor Mr. Wood, the property negotiators concerned, was called to testify. Instead, the Ministry on only two hours’ notice was able to call Mr. Macleod, their supervisor at the relevant time, to give evidence bearing on the issue. In the circumstances, I draw no adverse inference against the Ministry for not calling the property negotiators themselves and relying instead on rather imperfect evidence which might otherwise be characterized as hearsay.

[41]  Mr. Macleod testified as to the manner in which property negotiators on contract to the Ministry go about their work and, in particular, the way in which they document their files. They explain to owners the nature and particular needs of the project, outline the owners’ rights, and review with them the entire process of acquiring their property. He stated that each time the negotiator has discussions with an owner, the negotiator prepares an "owner contact report" and places it in the file. The reports are intended to diarize the contents of all discussions with the owners and, through these reports, it is possible to trace in detail the history of the file. Mr. Macleod also described the many years of experience in property negotiations possessed by both Mr. Colbert and Mr. Wood, and said that both were diligent in preparing their reports.

[42]  The Ministry sought to place in evidence copies of the owner contact reports prepared by the property negotiators in this case. The Toppings’ counsel objected to their admissibility as hearsay, but I ultimately allowed them in under the business records exception. There were a total of 16 such reports dated between early May and early September, 1998, all but one of which was a summary of meetings or telephone discussions with the Toppings themselves or in one instance with their legal counsel, Mr. Melville.

[43]  Given Mr. Macleod’s description of the thoroughness of these reports, it is surprising to observe how few and fleeting are the references to relocation costs after the Ministry decided to embark on a full taking of the Toppings’ property. Mr. Colbert’s reports make no mention of any discussion of the subject and in none of the 16 reports is there any reference to the Toppings’ plan to move to Cranbrook. The first notation on relocation is in Mr. Wood’s report dated July 6, 1998, wherein he states that the Toppings asked about an advance of funds to assist them with moving expenses. In his notation of a telephone discussion with Mr. Melville on July 23, 1998, Mr. Wood makes the observation that he believes Mr. Melville "would seek all relocation costs including the costs to find a replacement property."

[44]  From my review of these reports in light of other evidence received, I conclude that they cannot be comprehensive accounts of everything which transpired between the property negotiators and the Toppings, particularly on the subject of relocation costs. I am satisfied that discussions on this subject must have occurred by middle to late June, 1998, at which point it must have been clear to the Ministry’s representatives in the field that the Toppings intended to move to Cranbrook. Not only did the Toppings obtain, and have forwarded to Mr. Colbert’s attention, estimates in this respect from two separate moving firms, but Mr. Colbert on behalf of the Ministry also requested and obtained a third such estimate. On the tenor of the discussions which took place, I have only the evidence of Mr. and Mrs. Topping.

[45]  It does not, of course, necessarily follow that, because the Ministry knew of the Toppings’ plans or made its own inquiries as to the likely costs involved, it was therefore committed to paying those costs. I accept up to a point the argument that it would have been inappropriate for the Ministry to have told the Toppings where they could move although, in my view, not inappropriate to have cautioned them about the reasonable limits of reimbursement of the move. In any case, there is nothing in the owner contact reports which casts light on what was said either by way of assurances or cautions.

[46]  There is other evidence, however, which casts doubt on the likelihood that the Toppings, despite their subsequent recollections, received carte blanche assurances that all of their relocation costs would be paid.

[47]  From the Ministry’s side, Mr. Macleod testified that the Ministry’s approach to reimbursement was to be found in policy and procedural guidelines that set out the norms for allowances for conveyancing, moving costs, and other related expenses. Its negotiators would have had no authority to make any blanket representations, he said, and would have been subject to disciplinary measures if they did. Mr. Wood’s above-quoted comment in his report of July 23, 1998, suggests that Mr. Melville’s indication that he would be seeking all relocation costs came as something of a novel proposition rather than following upon the heels of an earlier promise made.

[48]  From the Toppings’ side, there is no evidence that they decided to relocate to Cranbrook only in reliance on a blanket assurance from the Ministry, and indeed, the evidence is that they never considered relocating anywhere else. Mr. Melville, in negotiating with the Ministry concerning the section 3 agreement and the advance payment, made the point that whatever was agreed upon by way of an advance payment would be subject to later review. In a letter to Mr. Wood dated July 27, 1998, Mr. Melville stated:

"Because [the advance payment] will be paid before actual relocation expenses are known the payment must be based on estimates. My clients will nevertheless be required to prove the reasonableness of those expenses at a later date."

In my view, that statement is not consistent with what the Toppings now say were open-ended assurances received from the Ministry. By July 30, 1998, the Ministry had communicated to Mr. Melville its proposed allocation of the advance payments, including $3,500 as a moving and temporary storage allowance and $1,000 as a conveyancing allowance. The absence from the Form A or amended Form A of any allegation of a detrimental reliance on blanket representations from the Ministry also weakens their position. Finally, the Toppings’ efforts to reduce costs by physically performing most of the move themselves in an economical manner, avoiding any extravagance in their meals, accommodation and the like, does credit to their sense of personal responsibility. However, it also somewhat perversely undercuts the notion that they were relying on an understanding that all costs would be paid.

[49]  The board’s decision in Hansen, which the Toppings cite in support of applying the doctrine of estoppel, is clearly distinguishable from the matter at hand. In that case there was unambiguous evidence of a faulty representation made by the expropriating authority’s property agent to the expropriated owner’s solicitor concerning the time within which a claim had to be filed. The board found that the solicitor had relied on that representation in consequence of which the claim was filed outside the limitation period. In that circumstance the expropriating authority was estopped from asserting a limitation defence which would otherwise have barred the bringing of the claim.

[50]  In the present instance, the direct evidence concerning what was said, or not said, to the Toppings about their entitlement to relocation costs is based on somewhat vague recollections. The other circumstantial evidence surrounding the matter, as described above, tends on a balance of probabilities not to support the allegation of a blanket assurance. Furthermore, the Toppings’ own evidence does not establish that any representation allegedly made to them by the Ministry caused them to decide to relocate from Cobble Hill to Cranbrook. Accordingly, in my opinion, the necessary elements of estoppel have not been satisfied.

2.6.2 The Mitigation Issue

[51]  E.C.E. Todd, in The Law of Expropriation and Compensation in Canada, 2nd ed. (Scarborough, Ont.: Carswell, 1992), makes the point that as a general principle compensation for disturbance damage is assessed on the sames bases as damages in tort and contract. At p. 318, he writes:

Damages in tort and contract are subject to the "duty" to minimize the damage. The duty comprises three rules namely that the claimant (1) cannot recover for avoidable damage, ie. all reasonable steps must be taken to mitigate damages; (2) can recover for damages incurred in taking reasonable steps to mitigate even if the resultant damage was greater than it would have been had no mitigating steps been taken; and (3) cannot recover for damage which is in fact avoided by mitigation.

[52]  Professor Todd goes on to state that a typical example of the so-called duty to mitigate arises where the expropriated owner claims relocation expenses. The owner should attempt to mitigate such expenses "by an orderly move", for example, by avoiding needlessly delaying the move and then submitting exaggerated evidence of the costs involved.

[53]  Although the duty of mitigation may be widely applicable to many aspects of relocation costs, the Ministry has raised the issue in the present instance somewhat narrowly focused on personal income tax considerations. As I understand the thrust of the Ministry’s argument, if the Toppings had claimed and been allowed a deduction for moving expenses on their personal income tax returns, they should in turn have reduced their claim for reimbursement from the Ministry in order to avoid double recovery. Since the Toppings’ evidence was that they could not recall having claimed such a deduction, the Ministry instead asserts that their apparent failure to do so amounts to a failure of their duty to mitigate.

[54]  Like the estoppel issue raised by the Toppings, the mitigation issue was raised by the Ministry only in its counsel’s opening statement. Since the issue had not been specifically pleaded in the Ministry’s Form B, the Toppings’ counsel took the position that it should be precluded from consideration at the hearing. The Ministry’s explanation was that the Toppings had provided particulars of their own claim so late in the day (roughly one week before the hearing commenced) that it had been difficult for the Ministry to mount a complete defence. Ministry’s counsel offered to file an amended Form B to remedy the matter, but it appears no such formal amendment was ever made. In any case, the issue was addressed by both parties during final submissions some eight and a half months later without the Toppings reiterating their procedural objection.

[55]  The Ministry made reference to Interpretation Bulletin IT-178R3, dated May 28, 1993, from Revenue Canada Taxation (now the Canada Customs and Revenue Agency) on the subject of moving expenses mainly with respect to section 62 of the Income Tax Act. Under subsection 62(3), "eligible moving expenses" include any expense incurred as, or on account of

	(a)	travelling costs, including reasonable amounts for meals and lodging, in the course of moving the taxpayer and members of the household;
	(b)	transportation and storage costs for household effects (including items such as boats and trailers);
	(c)	costs of up to 15 days for temporary board and lodging near either residence;
	(d)	costs of cancelling a lease for the old residence;
	(e)	selling costs for the sale of the taxpayer’s old residence, including advertising, notarial or legal fees, real estate commissions and mortgage prepayment or discharge fees incurred on the sale, but not including expenses for work done to make the property more saleable or any loss incurred on the sale; and
	(f)	legal fees in connection with the purchase of the taxpayer’s new residence, as well as land transfer taxes or taxes on the registration of title to the taxpayer’s new residence, if the taxpayer or spouse is selling or has sold the taxpayer’s old residence as a result of the move.

[56]  In interpreting the scope of this provision, para. 15 of the Bulletin goes on to state as follows:

15.

Section 62 provides that eligible moving expenses are deductible only when the reason for the residential move is to begin employment or business at the new location or to begin full-time attendance at an educational institution. It is always a question of fact whether or not a move has been made for such reasons. However, eligible moving expenses may be claimed provided that the taxpayer begins one of these activities either before or after the move. In addition, if an employee is transferred to another location of an employer’s business or if a self-employed individual relocates a business to another location in Canada, eligible moving expenses that are otherwise allowable may be deducted by the taxpayer.

[57]  The Ministry also referred to Interpretation Bulletin IT-271R, dated May, 16, 1980, on the subject of the tax treatment of expropriations. Para. 20 of the Bulletin notes that a compensation award may take into account, in addition to the fair market value of any expropriated property, several other factors such as "costs of relocation, including moving costs and legal fees or other costs incurred in acquiring new premises". Para. 21 states in part that expenses incurred by the former owner of the expropriated property, whether or not reimbursed as part of the compensation for the property, "are not deductible in computing the income of the taxpayer, unless…the expenses are specifically deductible under the Income Tax Act."

[58]  It appears to be the Ministry’s position, on the one hand, that under Interpretation Bulletin IT-178R3 virtually all of the Toppings’ relocation costs fall within the definition of "eligible moving expenses" and that they would have qualified for a deduction since the reason for their residential move was to begin employment or business at the new location. The Ministry further suggests that Interpretation Bulletin IT-271R seems to support their entitlement to such a deduction in the circumstances of expropriation. The Toppings, on the other hand, submit that they would not have been able to deduct their relocation costs since they were not moving for the purpose of relocating a business or to take up full-time school attendance, but rather they had been forced to move in consequence of the taking of their property. They say that para. 21 of the Interpretation Bulletin dealing with expropriation does not assist their situation, and that their costs of relocation would not be deductible from their income rather than being properly compensable by the expropriating authority.

[59]  I was without the benefit of any case authority or expert evidence on this point. However, it does appear to me from my reading of the Interpretation Bulletins in light of the established facts of this case that there is a real doubt as to whether the Toppings would have met the necessary criteria for claiming their moving expenses as a tax deduction. Their need to relocate was fundamentally and solely the result of the taking of their property and not the result of a business move or education-related decision. Applying the criteria in the context of expropriation could also lead to great inconsistency. For example, under the eligibility rules on moving expenses, the move must result in the taxpayer living at least 40 kilometres closer to the new work or business location. If the Toppings had chosen instead to relocate within the Cobble Hill area, none of the moving expenses which they then would have incurred would be deductible in any event.

[60]  The Act makes clear that the reasonable costs of relocating on other land is a cost to be borne by the expropriating authority. This, it seems to me, is as it should be. The Interpretation Bulletin dealing with expropriation, rather than advancing the Ministry’s argument, in my view actually weakens it. Nevertheless, if the Ministry through the discovery processes available to it had been able to show that the Toppings were entitled to and did in fact receive the benefit of a tax deduction in respect of their moving costs, a corresponding adjustment to the claim for disturbance damages would seem appropriate on the principle of avoidance of double recovery. However, absent any evidence of an actual deduction and given the uncertainties of the Toppings’ entitlement to one, I am unable to conclude that there has been any demonstrated lack of mitigation on their part.

2.6.3  The Issue Concerning the Interest Acquired

[61]  As I have previously observed, the Cranbrook property was registered in the names of the Toppings and Mrs. Topping’s parents respectively as to an undivided one-half interest as joint tenants. The Act specifies that an expropriated owner is entitled to reasonable relocation costs "that are necessarily incurred in acquiring a similar interest or estate in the other land." The question is whether, as the Ministry submits, the Cranbrook title arrangement should result in the Toppings receiving only 50 per cent of the relocation costs to which they might otherwise have been entitled.

[62]  It is unclear from the evidence why Mrs. Topping’s parents were registered on title as having an undivided one-half interest. Both Mr. and Mrs. Topping testified that they viewed the arrangement as a "paper exercise" only, arising out of the fact that the parents had been required by the mortgage lender to co-sign the mortgage as guarantors. They did not view the parents as co-owners of the property. Mrs. Topping stated that her parents had provided no funds toward the property purchase and that the Toppings themselves had been making all of the mortgage payments. The parents did not relocate to or make use of the Cranbrook property.

[63]  I accept the Toppings’ evidence as to the reasons for and the extent of parental involvement in this matter. Although I am now speculating, it seems to me that the parents’ registration on title may have been the result of a desire to protect themselves in regard to the potential financial obligations they assumed as guarantors under the mortgage. As I observed during the hearing, however, the Toppings themselves appeared to be under a legal misapprehension in believing that the arrangement was merely a paper exercise and that the parents had not effectively become co-owners.

[64]  In the circumstances described, I do not consider that the Toppings have disentitled themselves to some portion of their relocation costs by the manner in which they took title to the Cranbrook property. They held fee simple title to the Cobble Hill property and, after having been dispossessed by the Ministry, they acquired a similar fee simple interest in the Cranbrook property, albeit one which they now shared with Mrs. Topping’s parents. I am satisfied that the statutory requirement under section 34(1)(b) has, in this respect, been met.

2.6.4  The Issue of the Owner-Occupier’s Allowance

[65]  Section 38(1) of the Act provides:

	38	(1)	If expropriated land includes a residence that is
			(a)	occupied by a person who, in respect of that residence, would be entitled to a grant under the Home Owner Grant Act, and
			(b)	not being offered for sale by him or her on the date the expropriation notice under section 6(1)(a) or order under section 5(4)(a) was served on him or her,
				the person is entitled to be paid, in addition to the amount required to be paid to him or her under section 34, an amount equivalent to 5% of the market value of his or her estate or interest in that part of the land, not exceeding 0.5 ha, that is used personally by him or her for residential purposes.

[66]  Since the Toppings met the requirements set out in paragraphs (a) and (b) above, the Ministry, in making its advance payment to the Toppings, included the amount of $8,100 calculated on the basis of 5 per cent of the market value of the Cobble Hill property of $162,000.

[67]  The Ministry, on the one hand, asserts that the owner-occupier’s allowance under section 38(1) was intended to cover some portion of the relocation costs now claimed by the Toppings. The Toppings, on the other hand, assert that the allowance paid under section 38(1) is an entirely separate head of compensation, and that the Act clearly treats it as being "in addition to" the compensation they are entitled to receive as disturbance damages in the nature of relocation costs under section 34.

[68]  The Ministry during final submissions referred me to items of extrinsic evidence on what it says is the nature and intent of the 5 per cent owner-occupier’s allowance. The Ministry also cited the board’s decision in Apland v. British Columbia (Minister of Transportation and Highways) (1996), 60 L.C.R. 107, for the proposition that I am entitled to look at pertinent extrinsic evidence as providing some indication of legislative intent.

[69]  The first such item was an extract from the 1971 Report on Expropriation of the Law Reform Commission of British Columbia headed "Percentage allowance for compulsory taking". The Report recommended abandonment of the old "value to the owner" formula for determining compensation in British Columbia and its replacement by a "market value plus disturbance damage formula" already adopted at that point by some other reform jurisdictions, notably Ontario. The B.C. Commission considered that the new formula would make unnecessary in general the retention of a percentage allowance once commonly provided to cover contingencies. However, it also pointed out that the Ontario Law Reform Commission had identified an exception which was subsequently incorporated in that province’s reform legislation. The Ontario Commission had recommended a 5 per cent allowance be paid to all expropriated home-owners who were ordinarily resident in the home expropriated, provided that the home was not up for sale at the date of expropriation. The Report explained at p. 150:

"The reasons given for this 5-per-cent allowance were to compensate for uprooting the home-owner, the expenditure of time and effort in finding a new home, and the many miscellaneous small expenses which might not be claimed under the traditional heads of disturbance damage."

[70]  The Report found merit in the Ontario approach, and one of its specific recommendations was set out, in part, in the following terms:

	"2.	To compensate for the inconvenience and the cost of finding another residence, there should be payable, in addition to relocation expenses,
		(a)	to owner-occupiers of residences, an allowance of 5 per cent of the market value of that part of the land expropriated that is used by the owner for residential purposes, provided such part was not being offered for sale on the date of expropriation; (…)"

[71]  The second item of extrinsic material was from Hansard, Official Report of Debates of the Legislative Assembly, particularly an extract from the proceedings of May 19, 1987 (vol. 3, no. 9). In introducing on that date the bill which ultimately passed into law as the new Expropriation Act, the then Attorney General of British Columbia, the Hon. B.R. Smith, made the following observations concerning the proposed 5 per cent allowance, at p. 1213:

"…where the expropriated land includes the owner’s principal residence, then the owner is entitled to an additional amount consisting of 5 percent of the market value of that land, and this 5 percent allowance…is intended to compensate for the uprooting of the homeowner, the expenditure of time and effort in finding a new home and the many miscellaneous small expenses that might be claimed under the additional head of disturbance damage."

[72]  The Ministry says these discussions show that the 5 per cent allowance was conceived in part to compensate owners for some of the kinds of relocation costs claimed by the Toppings. In response to my inquiry as to what the Ministry thought was logically subsumed under the allowance, Ministry’s counsel referred to such items in the Toppings’ list of enumerated costs as those for utility connections, change of address, mortgage brokerage fees and the property tax adjustment on the Cranbrook property, in other words as I understood it, matters not strictly falling under "moving, legal and survey costs" in section 34(1)(b) of the Act.

[73]  Professor Todd in The Law of Expropriation, at pp. 283-286, also discusses in some detail the 5 per cent allowance which he characterizes as a "percentage for inconvenience" and as "heart-balm for the ‘uprooted’ home-owner". It exists in the expropriation statutes of Alberta, Manitoba, and New Brunswick in addition to those of Ontario and British Columbia. In all of those jurisdictions except British Columbia, it exists together with an equivalent replacement provision for residential owners often described as "a home for a home". Professor Todd sets out a number of guidelines around the awarding of the 5 per cent allowance which, he says, appear to be supported by the legislation and authorities. However, some of these are clearly either inapplicable or peculiar to British Columbia under the Act. Perhaps the most cogent of these guidelines from the Ministry’s perspective is the following statement at p. 284, citing Ontario cases:

The allowance is separate and distinct from other actual and specific relocation costs which are recoverable under the general disturbance provisions. However, a dispossessed owner cannot claim to be doubly indemnified for the inconvenience and cost of finding new premises.

[74]  Having considered all of the foregoing, I find myself at the end of the day unconvinced by the Ministry’s argument for several reasons. First, the extrinsic material offers no clear indication that the 5 per cent allowance in section 38(1) is meant to cover any relocation costs that could otherwise be claimed as disturbance damages under section 34(1). Indeed, the Law Reform Commission’s recommendation was for an allowance that would be "in addition to relocation costs". The extract from Hansard of the Attorney General’s speech to the legislature leads to some confusion. On the subject of the 5 per cent allowance, it is virtually a verbatim repetition of what the Law Reform Commission had to say, with one important exception. The Commission indicated that the allowance was intended in part to cover "the many miscellaneous small items which might not be claimed under the traditional heads of disturbance damage". The Attorney General instead is reported as having stated that it is intended in part to compensate for such miscellaneous small expenses "that might be claimed under the additional head of disturbance damages".

[75]  In Apland, where the particular issue was whether the legislature had intended to provide a "home for a home" provision under the Act, the reference to extrinsic material was useful. It served to show that, although the B.C. Law Reform Commission had recommended such a provision, suggesting language almost identical to what was contained in the Ontario Act, no such language was imported into the new British Columbia statute. The debates in Hansard also clearly revealed the public position taken by the government of the day against including such a provision. In the present instance, however, the extrinsic material adds little in the way of clarity on the question of legislative intent and does not particularly assist the Ministry’s case.

[76]  Second, the commentary by Professor Todd on the allowance as it is applied in other jurisdictions indicates some important differences from the situation in British Columbia. In those jurisdictions the allowance subsists together with the "home for a home" provision and in some cases it has been held that, in applying that provision, the percentage allowance must be taken into account. The effect, as Professor Todd points out, is that there is no legal basis for describing the allowance as "mandatory". In British Columbia, however, this is clearly not the case. If the necessary preconditions under section 38(1) are met, the expropriated residential owner "is entitled to be paid" the 5 per cent allowance.

[77]  Finally, the language of the Act is, in my view, free from any ambiguity as to the relationship between the allowance under section 38(1), on the one hand, and disturbance damages under section 34(1) on the other. The qualified owner is entitled to the 5 per cent allowance "in addition to the amount required to be paid to him or her under section 34". (Emphasis added)

[78]  Accordingly, I find that none of the relocation costs claimed by the Toppings, to the extent that they are recoverable disturbance damages under section 34(1), have already been compensated for through the provision of the 5 per cent owner-occupier’s allowance in section 38(1).

2.6.5  Were the Relocation Costs Actually Incurred?

[79]  I turn now to the more general issues of whether the Toppings have shown that the relocation costs they claim were actually incurred by them, whether the costs are compensable under section 34, and whether they were necessarily and reasonably incurred.

[80]  Since the Toppings were quite meticulous in collecting receipts and other supporting documentation relative to their move, there can be little question from the evidence provided, and which I have reviewed, that they incurred at least most of the expenses claimed. They are lacking receipts for two of the trips aboard B.C. Ferries which they claim. However, to travel between Vancouver Island and the Mainland by vehicle, they must incur such costs. Other evidence of accommodation, meals, gasoline and the like leaves no doubt that such trips were made.

[81]  The only substantive concern raised by the Ministry in this regard is with respect to the sum of $1,200 cash said to have been paid to Sean Gerela for his assistance in the move. The documentation in support of this claim is a short form receipt to the Toppings in that amount, apparently signed by Mr. Gerela, which states: "for assisting them move Sept. 5 – Oct. 1998". It is dated October 27, 2000, more than two years after the move and only four days before the compensation hearing began.

[82]  In para. 7 of their affidavit dated October 30, 2000, the Toppings deposed as to the ways in which Mr. Gerela assisted them:

"The work he provided included: packing boxes, loading our belongings onto four vehicles, as well as driving the loaded van from Cobble Hill to Cranbrook; upon arrival in Cranbrook, unloading our belongings into storage until we found a home to purchase; reloading our belongings and transporting them to our new residence; and then unloading and unpacking into our home. Mr. Gerela returned with Danny Topping to Cobble Hill and again helped packing and loading the 5-ton van. The time period for all the work provided was approximately one month, commencing in or about September, 1998."

[83]  Under cross-examination Mr. Topping was asked by the Ministry’s counsel approximately how many hours Mr. Gerela worked on the move, how his payment was calculated, and why he provided a receipt only days before the hearing. Mr. Topping responded that Mr. Gerela had spent three days packing for the move to Cranbrook and three days in a row driving there, and that, in all, he had performed about 14 days of work. Mr. Topping said Mr. Gerela was a personal friend, not a professional mover, who was otherwise unemployed at the time. He had offered Mr. Gerela the sum of $1,200 in cash and still considered that his friend had been underpaid. The Toppings had only requested a receipt from him shortly before the hearing because, according to Mr. Topping, it was not until that point that they figured they might need one.

[84]  While 14 days spent on the move strikes me as somewhat time-consuming, I accept the evidence that the Toppings did indeed engage the services of Mr. Gerela and that they paid him $1,200 in cash for his assistance. I also observe at this point that, even if Mr. Gerela had been able to perform his tasks in less time than was actually spent, the sum of $1,200 does not stand out as an unreasonably large amount to have been paid.

2.6.6  Are the Costs Claimed Recoverable under Section 34?

[85]  The Toppings’ claim for relocation costs falls under five broad categories: (1) moving and temporary storage costs, which also include several items of repair to vehicles used in the move; (2) legal costs related primarily to the Cranbrook property; (3) survey costs for the Cranbrook property; (4) "other costs" which largely comprise their personal out-of-pocket expenses to travel to Cranbrook and obtain temporary lodging there, as well as the cost of utility hookups and change of address; and (5) costs related to the purchase of the Cranbrook property, including finance-related charges.

[86]  The Toppings say all of these costs are recoverable under section 34(1)(b) as the "reasonable costs of relocating on other land", even though para. (b) specifically refers only to "reasonable moving, legal and survey costs". Observing that at the time of the hearing there did not seem to be any British Columbia cases which directly dealt with the issue of relocation costs, the Topping’s counsel referred to decisions in other jurisdictions to support the scope of their claim.

[87]  Bean v. City of Waterloo (1971), 1 L.C.R. 362 (Ont. L.C.B.) was cited to show that the expropriated owners in that case were awarded the costs of temporary accommodation and storage, where they rented an apartment and stored part of their furniture while looking for replacement housing, as well as their moving costs both to and from the apartment. In PANS Social and Recreation Club of Halifax v. City of Dartmouth (No. 2) (1983), 28 L.C.R. 205, the Nova Scotia Expropriations Compensation Board allowed the owners’ disturbance damage claims for the legal costs of purchasing new premises as well as the cost of mailing out notices to members. In Walkerville Printing Co. Ltd. v. City of Windsor (1976), 9 L.C.R. 378 (Ont. L.C.B.), the expropriated owner’s claim for the costs necessitated by a change of address was allowed as an item of disturbance damages. The case of Pentum Mining & Development Ltd. v. Nova Scotia (Attorney General) (1990), 44 L.C.R. 161 (N.S.S.C.) was cited as an instance where, on appeal, both the mortgage brokerage costs and legal fees related to the mortgage on the expropriated property were allowed as items of disturbance. Finally, in The Queen in Right of Manitoba v. Leather Ranch Ltd. (1987), 37 L.C.R. 285, the Manitoba Court of Queen’s Bench, with reference to the express wording of the province’s expropriation statute, held that interest on expenses incurred in moving to and preparing the relocation premises were recoverable in respect of disturbance as an instance of "such reasonable costs, expenses and losses as arise out of or are incidental to the expropriation".

[88]  As the Ministry’s counsel pointed out during her submissions, these cases must be treated with caution since that they deal with provincial statutory schemes of compensation that are somewhat different than the scheme under the Act. For example, the Ontario Land Compensation Board in Bean, in making its compensation award, had to consider a statutory provision which allowed for "moving, legal, survey and other non-recoverable expenses…incurred in acquiring other premises." (Emphasis added) Additionally, under the Ontario statute, there were express provisions based on the principle of a "home for a home" and for "special difficulties in relocation", neither of which is to be found in the British Columbia statute.

[89]  The scope of disturbance damages on relocation under section 34 has been considered in two decisions of the board: first, in the Apland case already cited, and second, in Pay Less Gas Co. (1972) Ltd. v. British Columbia (Minister of Transportation and Highways) (2001), 74 L.C.R. 81, a decision rendered after the conclusion of submissions in this matter.

[90]  In Apland the owners claimed disturbance damages for the $8,000 difference between what the authority paid them for their expropriated residence and what it cost them to purchase a replacement residence. One question addressed by the parties during the course of the hearing was whether the $8,000 claim might stand as a relocation expense under section 34(1)(b). The authority said it could not since, by application of the rules of statutory construction, such relocation expenses are not to be construed in their widest extent but are to be held as applying only to "out of pocket" items of the same general kind or class as those specifically mentioned. The owners appeared not to disagree with this interpretation and expressly did not rely upon the provision for "reasonable costs of relocating on other land" in section 34(1)(b). At p. 117 of the decision, I commented as follows:

In my view, they were correct not to do so. There the additional words "including reasonable moving, legal and survey costs" (emphasis added) appear to indicate instances of the kinds of relocation costs which are recoverable without exhaustively listing them. However, I agree with the Ministry’s contention that the ejusdem generis rule of statutory construction applies in this instance, and that a claim to recover the difference between the market value of the subject property and the price paid for the replacement residence would not be included.

[91]  In Pay Less, where the claimant oil company relocated its expropriated service station facility to other land nearby, the board had to consider what relocation costs incurred were properly compensable within the ambit of the Act. An initial question was whether the reasonable costs of relocation to which the claimant was entitled were limited by the express provision in section 34(1)(b), or whether some costs and expenses in relocating to the new station might fall more generally under section 34(1)(a). After considering the Apland decision, the board in Pay Less expressed the view that the scope of section 34(1)(a) was wider, so that, for example, reasonable costs and expenses "directly attributable to the disturbance caused to the owner by the expropriation" could include particular items of relocation expense that did not appear to fall within the scope of section 34(1)(b).

[92]  The board in Pay Less went on to state the following at p. 148:

The board is also mindful of the general principle set forth by the Supreme Court of Canada in Toronto Area Transit Operating Authority v. Dell Holdings Ltd. (1997), 60 L.C.R. 81 at p. 91, that "the Act should be interpreted in a broad, liberal and flexible manner in considering the damages flowing from expropriations".

The Ministry’s counsel during her final submissions in this matter conceded that a narrow reading of the scope of section 34 of the Act may be inappropriate in light of the judgment in Dell Holdings.

[93]  I therefore accept the Toppings’ argument that section 34(1)(b), properly construed, would cover nearly all items within the five broad categories of relocation costs claimed. In case of doubt, for example with respect to finance-related expenses of acquiring the Cranbrook property, section 34(1)(a) could also be invoked.

[94]  The Ministry questioned whether the payment of $560.53 to P.R. Western Truck for brake repairs to the 5-ton truck purchased by Mr. Topping in an "as is" condition shortly before the move was a cost "directly attributable" to the expropriation. It contended that such a truck would have been subject to an annual brake inspection, evidently due within a month’s time, and that this was therefore a cost which the Toppings would have incurred in any event. Mr. Topping did not dispute that an inspection procedure was involved. Be that as it may, the truck was necessary to their move, in turn made necessary only by the taking of their Cobble Hill property by the Ministry, and I therefore conclude that the repair cost in these circumstances was a cost of relocation "directly attributable" to the taking.

[95]  There are, however, two items claimed which, although not specifically objected to by the Ministry, I consider not to be recoverable as disturbance damages under section 34(1). The first is the property tax adjustment in the amount of $136.12 on the Toppings’ completion of the purchase of the Cranbrook property. As revealed in their amended Form A, at para. 7 of the statement of claim, the Toppings were paid by the Ministry a property tax adjustment of $359.51 on its acquisition of the Cobble Hill property. The tax adjustment on the Cranbrook property was to reimburse the vendor for property taxes already paid for the remainder of the 1998 tax year. It is an expense which, as owners of the new property, the Toppings must properly bear.

[96]  Closely related to the foregoing item is the amount of $225 held back in a tax account by the mortgage lender on the Cranbrook property. Mortgagees have an interest in ensuring that funds will be available to pay the property taxes as they fall due from year to year and this, as I understand it, is the object of a tax account holdback. The $225 held back from the mortgage proceeds provided to the Toppings is a sum which would be applied to the next year’s property taxes. In other words, it becomes a credit to them rather than a non-recoverable expense. To reimburse the Toppings for this amount as a disturbance damage would therefore result in double recovery.

2.6.7  Are the Costs Claimed "Reasonable" and "Necessarily Incurred"

[97]  The Toppings stress the reasonableness of the manner in which they went about relocating from Cobble Hill to Cranbrook, including their efforts to accommodate the Ministry’s construction needs by providing early vacant possession. Their moving and temporary storage costs, for example, totalled $5,764.82, whereas the estimates from professional moving companies ranged between approximately $8,000 and $11,000 and did not include the cost of transporting all of their vintage vehicles. To the Toppings’ cost of moving must be added some of the "other costs" such as ferry tolls, meals, gas and lodging. These were increased by the Toppings’ need to make three separate moving trips to Cranbrook which, if they had relied on professional movers, might perhaps have been reduced to only one or two. Nevertheless, I am satisfied that there was nothing unreasonable, in the sense of being careless or extravagant, about the Toppings’ conduct.

[98]  The more difficult question which I have had to ponder is whether it is reasonable for the Toppings to be fully reimbursed for their costs in choosing to relocate to a distant region of the province rather than remaining somewhere in the locality of Cobble Hill or elsewhere on southern Vancouver Island. Notwithstanding its amenities, there was no evidence to suggest a compelling need, as opposed to a strong desire, by the Toppings to move to Cranbrook in 1998. The nature of their work or opportunities for employment did not, so far as I can discern, demand it. According to their own evidence, the Toppings did not consider closer and less costly alternatives for relocation.

[99]  I find persuasive the Ministry’s argument that some geographical limitation should apply to reimbursing an expropriated residential owner’s costs of relocating on other land. What if, as the Ministry posed in argument, the Toppings had set their hearts instead on relocating to the Maritime Provinces? What if the relocation destination of choice had been Australia? While such hypotheticals go far beyond a decision to relocate within the same provincial jurisdiction, the question nevertheless resolves itself into a consideration of what is intended by the word "reasonable" in section 34(1) of the Act.

[100]  I also confess to finding myself somewhat puzzled by the purchase offer and financing arrangements entered into by the Toppings in Cranbrook in view of the timing and amount of the Ministry’s advance payments.

[101]  In the first place, Mr. Topping testified that during the first moving trip to Cranbrook in August, 1998, he and his wife had lost an opportunity to purchase a home there because they had not received the Ministry’s initial advance payment of $20,000 in time to be able to put down the necessary cash deposit. No documentary evidence was provided concerning this offer. It appears from the various receipts provided that the Toppings were actually in Cranbrook from approximately August 12th to 14th at which time presumably the offer would have been made. The parties are agreed that the Ministry made its initial advance payment to the Toppings’ solicitors, Peterson Stark, on August 11th. Therefore, it is unclear why the funds would not have been available to the Toppings to secure their offer with a cash deposit. I raise the matter largely because, of course, it was not until the Toppings returned to Cranbrook on or about September 10, 1998, that they were able to look further for a property to purchase. Once having found one, they incurred the interim cost of three weeks’ motel accommodation before obtaining possession. In these circumstances the question arises as to whether the cost of temporary lodging was "necessarily incurred" such that the Ministry should be expected to reimburse it.

[102]  In the second place, the Toppings incurred the cost of a mortgage broker to obtain mortgage financing for the Cranbrook property. The broker’s charge, including GST, was $1,337.50. They testified that they had also required a mortgage broker to arrange financing for the purchase of their Cobble Hill property years earlier. The mortgage which they placed on the Cranbrook property was high-ratio, that is, more than 75 per cent of the purchase price of $72,900, and accordingly, as I understand it, had to be insured through CMHC. The Toppings paid a $75 approval fee to CMHC and $1,200 for mortgage insurance. Mrs. Topping’s parents were also required to act as guarantors. I find these arrangements puzzling in light of the fact that the Ministry made a further advance payment of $56,942.27 to the Toppings on September 11, 1998. This was an amount over and above what the Ministry advanced to pay out and discharge the existing mortgage on the Toppings’ Cobble Hill property. It brought to $76,942.27 the total amount advanced to the Toppings. Even after taking into account interim living expenses, possible loss of income, and moving and travel costs to Cranbrook, these funds should logically have left them in a strong position with respect to the Cranbrook property purchase. There may, of course, have been other circumstances which bore on their financial capability but, if so, they were not disclosed in evidence. It seems to me that a real doubt again arises as to whether some of the costs of financing the purchase of the Cranbrook property were "necessarily incurred".

2.6.8  Conclusion

[103]  I conclude that the Toppings are entitled to be reimbursed for the reasonable relocation costs which they reasonably and necessarily incurred in vacating their property in Cobble Hill and moving to Cranbrook and which are recoverable as disturbance damages under section 34(1) of the Act. However, in light of the foregoing discussion, I do not consider that they are entitled to recover all of the costs claimed. I have not accepted the Toppings’ argument based on detrimental reliance. In my view, it is therefore not reasonable within the meaning of section 34(1) to expect an expropriating authority to fully reimburse owners who, in the absence of compelling circumstances, choose to move to a distant location with the consequence that their relocation costs must be significantly increased. I am also not convinced from the evidence that, in the present instance, all of the costs claimed were necessarily incurred within the meaning of section 34(1).

[104]  Because the factors to which I have just alluded are not capable of precise measurement, I am thrown back instead upon a proportionate allowance. In my view, doing the best that I can with the evidence provided, it is reasonable to allow the Toppings some two-thirds (or approximately 66.7%) of the relocation costs which I have found to be applicable. After deducting from their overall claim of $13,663.01 those items which are not compensable – the property tax adjustment of $136.12 and the tax account holdback of $225.00 – the Toppings are therefore allowed two-thirds of the remaining claim of $13,301.89, which amounts to $8,870.00 (rounded). Since the Ministry has already paid them in advance $3,500.00 as a moving and temporary storage allowance and $1,000.00 as a conveyancing allowance, the Toppings are therefore allowed in addition to those amounts the sum of $4,370.00 for relocation costs incurred.

[105]  It is somewhat disheartening to observe that a claim involving so little compensation should become the subject of so lengthy and detailed a review of the evidence and the law. One might have wished, in the interests of timeliness, economy and finality for all concerned, that the parties had reached agreement on this outstanding issue, as they did on all others except interest and costs, without the necessity of proceeding to hearing. Since the issue of relocation costs was not settled, it did result, however, in the raising of several matters not previously addressed by the board.

3.  INTEREST AND COSTS

[106]  The Ministry during final submissions requested that determination of the Toppings’ claims for interest and costs be adjourned in order that specific evidence bearing on those issues could be led. As I understood it, the Ministry wished to place in evidence a "Calderbank letter" going to costs and other evidence concerning what had transpired between the parties during the lengthy interval between the hearing of evidence and final submissions going to the issue of interest. Ministry’s counsel submitted that it was not appropriate that this evidence go before the board before compensation had been determined. The Toppings opposed having these matters adjourned. Their counsel said her clients were looking for closure.

[107]  Reluctant as I was to have this matter further protracted, I granted the Ministry’s request at the conclusion of the hearing. I note that, for the purpose of determining entitlement to costs, the Ministry’s advance payments totalled $176,420, whereas the total compensation either agreed upon or awarded totals $180,790, or just under 102.5% of the advance payment. Therefore, pursuant to section 45(5) of the Act, the board appears to have a discretion in the awarding of costs to the Toppings.

[108]  Accordingly, the claims for interest and costs are adjourned. I would urge the parties to proceed expeditiously in arranging for a continuation of the hearing, if necessary, for the sole purpose of dealing with them.