December 5, 2003, E.C.B. No. 48/95/243

 

Between: 415528 B.C. Ltd.
Claimants
And: Greater Vancouver Sewerage & Drainage District
Respondent
Before: Sharon I. Walls, Vice Chair*
Appearances: L. John Alexander, Counsel for the Claimant
Robert McDonell, Counsel for the Respondent
* At the time Ms. Walls heard this application, she was the Vice Chair of the board.

 

REASONS FOR DECISION

1.  INTRODUCTION

[1]  This is an application brought by the claimant, 415528 B.C. Ltd., for a review of its bills of costs and a final award of costs under section 45 of the Expropriation Act, R.S.B.C. 1996, c. 125 (the Act) and Tariff of Costs Regulation, B.C. Reg. 189/99 (the Tariff). The costs at issue arise out of a taking of a portion of the claimant's lands by the respondent, the Greater Vancouver Sewerage and Drainage District, by way of a section 3 agreement dated July 11, 1994. The costs claimed are in respect of legal, appraisal and other professional services provided to the claimant between July 1994 and June 2003, including the costs of this application. The total costs before me on this final review, including the costs allowed in a previous section 48 application total over $175,000 after excluding GST and other recalculations discussed below. The claimant is a GST registrant and no GST is payable. As of the time of the review, the respondent had made payments on account of the claimant's costs of $54,203.23 plus $21,600 in May 2003 for a total of $75,803.23.

2.  BACKGROUND

[2]  The matter has a long history. It involved a partial taking as of July 13, 1994 for a pre-existing sewer pipe. The taking occurred in the midst of subdivision development of the subject property and the claimant eventually claimed additional development costs as well as costs for delay. See the board's reasons for decision with respect to compensation at (2002), 79 L.C.R. 81 (B.C.E.C.B.).

[3]  Bruce Melville of Peterson Stark was initial counsel and he retained an appraiser, John Rack, and other experts. The Form A was filed on August 16, 1995 and much work was done prior to the Tariff coming into effect on June 28, 1999. The case was set down for hearing and adjourned several times. Accounts from Peterson Stark (along with an additional legal account from another lawyer) and Mr. Rack for pre-Tariff work (after extraction of GST), together with monies paid by the authority were as follows:

Pre-Tariff Work from 1994 - June 1999
  Billed Paid
Pre-Tariff legal $36,166.00 $26,715.00  
    $ 5,000.00*
Pre-Tariff appraisal $ 7,980.00 $ 5,350.00  
  $44,146.00 $37,065.00  
* for unspecified costs

The entire pre-Tariff accounts are claimed.

[4]  After the Tariff came into effect, Mr. Melville and Mr. Rack as well as the other experts who had been retained continued to do work until September, 2000 when a fifth scheduled hearing date was adjourned because the claimant decided to appoint new counsel. Mr. Rack had produced a report dated March 3, 2000. John Alexander, of Cox Taylor, filed a Notice of Change of Solicitor on February 1, 2001 and appeared for the claimant at an eleven day compensation hearing in the fall of 2001. Mr. Alexander retained a new appraiser, Dave Hilts, of Royal Lepage whose report dated July 6, 2001 was relied on by the claimant at the compensation hearing. Prior to the compensation hearing, Mr. Alexander brought a section 48 application for advance payment of costs. Bills of costs under the Tariff were presented as well as accounts for other experts. The reasons for decision in this advance costs application at (2001), 75 L.C.R. 217 indicate that the sums claimed and the amounts allowed were as follows:

Tariff accounts including disbursements at section 48 hearing
  Claimed Allowed (at Scale 2)
Legal bill of costs -- (Melville) $24,570.00 $ 4,643.80 (inc PST)
Disbursements $ 1,878.55 $ 500.00  
Appraisal bill of costs -- (Rack) $18,000.00 $ 3,700.00 (for both)
-- (Hilts) $ 5,000.00    
Other experts $12,914.20 $ 8,294.55  
  $62,362.75 $17,138.35  

Some accounts were adjourned pending further evidence.

[5]  In its reasons for decision dated December 19, 2002 (79 L.C.R. 81) the board awarded the claimant a total of $208,776 in compensation for the partial taking: $165,073 for loss in market value and $43,703 for loss in profits. The respondent had made advance payments in 1994 totalling $121,000, excluding interest and costs. With respect to costs the board had this to say at para 235:

… that those legal and appraisal costs which are subject to the Tariff should be assessed under Scale 3. Although the case involved only the partial taking of a statutory right of way interest through a small portion of the subject property, the fact that it occurred in the midst of an ongoing subdivision development complicated the assessment of loss in market value and financial loss. It required the bringing together and analysis of evidence from experts in civil and geotechnical engineering, surveying and costing, and included the consideration of a number of significant legal and valuation issues. The hearing of evidence and argument occupied eleven days during which a total of ten expert witnesses testified. Although none of the issues perhaps rose to the level of more than ordinary importance, taken cumulatively they did constitute a matter which was of more than ordinary difficulty.

[6]  Following the board's release of its decision on compensation the respondent filed a Notice of Motion on January 24, 2003 seeking to amend the wording of the award part of the decision. The respondent submitted that there was an inconsistency between the board's written reasons and the award and accordingly the award needed to be amended. A hearing of this motion took place on February 28, 2003 and lasted about two hours. The board issued reasons on March 20, 2003 dismissing the application on the grounds that it was functus officio and without jurisdiction to deliberate on the issues raised. These reasons are presently unreported but are available on the board's website at ECB No. 48/95/234.

[7]  The application for this final review of costs was heard on June 11, 2003. In addition to the monies already allowed in the section 48 hearing the following accounts for payment were claimed (after the exclusion of GST and other recalculations discussed below):

Monies claimed at this section 45 hearing
  Fees Disb. Total inc PST
Pre-Tariff legal accounts -- (Way) $ 2,450.00 $ 194.77 $ 2,816.26
-- (Melville) $29,757.00 $ 1,520.00 $33,349.74
Legal bill of costs $44,550.00 $ 4,605.75 $52,497.00
2nd Legal bill of costs for February 28, 2003, application $ 7,020.00 $ 142.20 $ 7,688.87
Pre-Tariff appraisal accounts $ 7,980.00   $ 7,980.00
Appraisal bill of costs -- Hilts $25,200.00   $25,200.00
Appraisal bill of costs -- Rack $13,560.00   $13,560.00
Other experts $10,393.78   $10,393.78
Claimants' own disbursements                $ 4,568.99 $ 4,568.99
Total $140,910.78 $ 11,031.71 $158,054.64

Some of the earlier accounts that remained outstanding were resubmitted and are listed above. There were also additional monies owing on the Tariff bills awarded at the section 48 hearing at Scale 2 which now need to be re-calculated at Scale 3. These sums in the approximate amount of $2,000 are not included above. Together with the $17,138.35 already allowed in the section 48 review, the total claim for costs is over $175,000.

3.  ISSUE

[8]  The main issue for this cost review according to the respondent was that the costs incurred were excessive. Because of the decision to retain a second lawyer and appraiser the costs were also duplicative. The claimant had recovered $208,776 (excluding interest and costs). An advance payment of $121,000 had been made and while the claimant had been awarded $87,776 more than this sum, it was claiming a total of over $175,000 in costs to achieve this additional payment. At a very early stage, prior to the section 3 agreement in 1994, there had been a settlement offer offering $251,787 for market value, additional construction costs and owner's time, together with interest and legal costs.

4.  OTHER EXPERTS

[9]  There were a number of accounts from other consultants. Some of these were resubmitted from the section 48 application with further evidence and some were new accounts. They were as follows:

  Type of expert Expert Date Invoice
(without GST)
i Acoustical BKL Consultants Nov 26, 1999 $ 437.50  
ii Quantity surveyor Costex Oct 16, 2001 $ 822.50*
iii Land planning Genesis Oct 9, 2001 $ 811.90*
iv Engineer Hunter Laird Mar 3, 2000 $ 404.65*
      Nov 7, 2001 $ 865.00*
v Surveyor Papove Jan 15, 2003 $5,218.87*
vi Geotechnical Terra Engineering Mar 10, 2000 $ 540.00*
vii Land development Slade Dyer Apr 3, 2002 $1,293.36  
  Total     $10,393.78  

[10]  The respondent agreed to those accounts marked with an asterisk*. Two accounts remained in dispute. The noise consultant BKL was retained to provide an independent review of the respondent's planning report, particularly with respect to the acoustical significance of a retaining wall. A copy of a letter from BKL referring to its opinion was attached as an appendix in the Royal Lepage appraisal report. At the compensation hearing the respondent's planner was not qualified to provide opinions on acoustical matters and the expert from BKL did not need to be called. Under Van Daele v. Van Daele (1984), 56 B.C.L.R. 178 (C.A.) the test for a disbursement such as hiring an expert acoustical consultant is whether it was "a proper disbursement in the sense of not being extravagant, negligent, mistaken or a result of excessive caution or excessive zeal, judged at the time when the disbursement or expense was incurred" (emphasis added). I allow the account from BKL.

[11]  The other account that remained in dispute was that of Slade Dyer. The respondent's position was that it had paid or agreed to pay $2,751.90 for five accounts from Genesis which was also a land development and planning firm. Several opinion letters from Genesis were attached as an appendix in the Royal Lepage appraisal report. There was no reference to any information from Slade Dyer and he was not called at the hearing. The respondent says that Slade Dyer's work was duplicative and the claimant had not established that it was necessarily incurred to assert its claim for compensation or damages.

[12]  The principal of the claimant, Brian Craig, filed an affidavit that said that Mr. Dyer had identified the feasibility of a 31 lot layout in the absence of a taking. He went on to say that this information was used by Mr. Rack and Mr. Craig to advance the claim even though Mr. Dyer was not called as a witness. A professional land surveyor was retained to document this evidence at the hearing.

[13]  Mr. Dyer's account is for work provided in December 2000 and January 2001. According to Mr. Dyer's account, a total of 13.6 hours were billed over eight different dates to advise Mr. Craig, about the expropriation process, the expropriation issues in this case, to review the documents and prepare a synopsis. I note that Mr. Melville was discharged in August 2000 and Mr. Alexander filed his Notice of Change of Solicitor on February 1, 2001. We heard no further evidence as to Mr. Dyer's work.

[14]  While the claimant attributed the 31 lot subdivision concept to Mr. Dyer, I note that Mr. Rack's report dated March 3, 2000 based its evaluation on a 31 lot subdivision in the before situation. Mr. Rack relied on an attached report from Genesis Development, a land planning consultant, dated December 23, 1999 which in turn relied on a plan prepared by the land surveyor who was called to testify at the hearing. None of Mr. Rack's detailed time entries prior to his report refer to reviewing information from Mr. Dyer, although there are references to reviewing information from the planner, Genesis, and from the engineer, Hunter Laird. Given the dates of Mr. Dyer's work this account can not be for work to identify the possibility of the 31 lot subdivision. Mr. Dyer's work may well have been invaluable to Mr. Craig. However, the respondent is only responsible for reasonable expenses that are necessarily incurred to assert the claim for compensation or damages. It appears to me on the evidence that I was given that Mr. Dyer's work is duplicative and the costs of it will have to be borne by the claimant and not the respondent.

[15]  Thus, the total monies allowed for other consultants in addition to the $8,294.55 allowed in the section 48 hearing is $9,100.42.

5.  LEGAL ACCOUNTS

5.1  Pre-Tariff legal accounts

[16]  I was provided with a total of 13 legal accounts prior to June 28, 1999 and the introduction of the Tariff. All but one of these was from Mr. Melville or from the firm he later joined, Peterson Stark. There was one legal account from David Way of Coquitlam for $3,000 in 1994. The respondent pointed out that although page 2 of Mr. Way's account referred to work on the section 3 agreement, page 1 of the account was missing. A letter from Mr. Way indicated that some of the account was for work to do with the subdivision. The page of Mr. Way's account that I was given is very general and does not provide a breakdown of time spent on different tasks nor his hourly rate. The respondent is not responsible for work on the claimant's development including subdivision. Mr. Melville had already been retained at this time and Mr. Melville's bills reflect time billed for telephone calls and correspondence with Mr. Way. There was no explanation for this duplication. Given the format of Mr. Way's account and the missing page I am unable to determine how much time, if any, was necessarily spent to assert the claimant's claim. The onus is on the claimant and in all the circumstances I allow no monies for this account.

[17]  The other 12 pre-Tariff legal accounts were dated between June 1994 and June 1999. Mr. Melville billed a total of 124 hours on these accounts at hourly rates varying between $200 and $230, with total fees including those for a legal assistant at $29,757. The total accounts from Mr. Melville pre-Tariff were $33,349.74 including disbursements and PST but without GST. The work billed included filing a Form A, revising the Form A, instructing the appraiser Mr. Rack, preparing three lists of documents, preparation and attendance at an examination for discovery and setting the matter down for hearing several times. There were also meetings and correspondence with the client, with agents for the respondent and with others, review of the respondent's reports and over 30 hours preparation for a hearing scheduled in June 1999.

[18]  The respondent made advance payments of $26,715.88 on these accounts from time to time as well as a payment of $5,000 for unspecified costs. As pointed out above its general position is that the costs are excessive and not all the work that was undertaken was necessary to assert the claim for compensation and damages.

[19]  The factors to be considered on a section 45 hearing for pre-Tariff accounts are first, the necessity for the work and secondly, the reasonableness of the costs claimed. The reasonableness of the amount claimed is to be determined in the context of the statutory directions provided in s. 45(10) which states:

45  (10)  In a determination of costs under subsection (8) or (9), the following considerations must be taken into account:
    (a)  the number and complexity of the issues;
    (b)  the degree of success, taking into account
      (i)  the determination of the issues, and
      (ii)  the difference between the amount awarded and the advance payment under section 20(1) and (12) or otherwise;
    (c)  the manner in which the case was prepared and conducted.

It is also necessary to consider the common law criteria for reasonableness as codified in s. 71.1 of the Legal Profession Act, S.B.C. 1987, c. 25. Among these factors to be considered in assessing reasonableness are the complexity and difficulty of the issues involved, the degree of success, the skill and specialized knowledge required of the lawyers involved and the time reasonably expended. The degree of success is to be measured having regard to both the determination of the issues and the difference between the amount awarded and the advance payments. See Branscombe v. MoTH (No. 3) (1995), 56 L.C.R. 138 (B.C.E.C.B.).

[20]  In this case the partial taking occurred during the midst of an ongoing subdivision. This meant that the claim for injurious affection to the remainder presented a complex valuation requiring contribution from numerous experts. The full extent of the injurious affection was not initially recognized and it was only post Tariff that work was done to substantiate a more complicated claim for compensation. It is not possible to value the degree of success of this work since the claimant changed counsel before the hearing. There were three hearing dates adjourned during the pre-Tariff stage, two of them at the request of the claimant. There were over 30 hours of preparation for the third hearing that was adjourned at the claimant's request. There was presumably other work in preparing for these hearings that was wasted. Mr. Melville has expertise in expropriation matters but much of the 124 hours that he billed was at a rate higher than the maximum hourly rate allowed by the board of $200 for the same period. There is 26 hours claimed for legal assistant work, much of it for preparing lists of documents. While some part of preparing lists of documents may be categorized as legal assistant's work, there is a secretarial component to this work that is not recoverable from the respondent. I allow $20,000 in fees for the work on these accounts plus the applicable PST of 7% or $21,400.

[21]  With respect to disbursements there was a total of about $1,520 rounded. The respondent generally agreed to disbursements but for photocopying. There was no duplication involved in photocopying at this pre-Tariff stage but the unit rates for photocopying and fax were more than that allowed by the board (they ranged between $.25 and $.30 a page for photocopying, with almost all at $.30 and between $.50 and $1.50 a page for faxes.) If these are recalculated at the rates allowed by the board (and as used by the claimant below) there is a reduction of about $450. I allow $1,070 for disbursements. Thus the total amount allowed for pre-Tariff legal accounts including disbursements and PST at 7% is $22,470.

5.2  Tariff legal accounts

5.2.1  Scale 3

[22]  As a result of the board's award the claimant is entitled to the Scale 3 differential of $40 per unit on the legal bills of costs that were awarded at Scale 2 on the section 48 hearing in 2001. This is calculated as follows, including PST at 7%.

  No. of Units Differential PST Total
Legal bill of costs 31 $1,240 $86.80 $1,326.80

5.2.2  Costs of the Notice of Motion following the Decision on Compensation

[23]  One of the issues in this application was whether the claimant was entitled to treat the February 28, 2003 application to amend the award as a new matter to which a separate bill of legal costs under the Tariff would apply. At the February 28th hearing the claimant submitted that if the board was functus officio the claimant should be entitled to treat the application as a new matter to which a separate bill of legal costs under the Tariff would apply. The respondent objected and said that the application to amend the order was a continuation of the same matter. In its reasons dated March 20, 2003 the panel refused to decide this issue and made no orders as to costs. It went on to comment that this was a question more appropriately addressed at a final review of costs, should one become necessary.

[24]  Thus, at this section 45 hearing the claimant renewed its submission. It sought costs on a separate bill of legal costs for what it described as an appeal/reconsideration matter. The claim related to this hearing was for 39 units under eight separate items, or $7,020, plus disbursements and PST for a total of $7,688.87. The items claimed included 1, correspondence etc.; 5, commencing and prosecuting a claim; 12 and 13, preparation and attendance at pre hearing conference; 18, and 19, preparation and attendance at appeal hearing. The claimant emphasized the board's determination that it had no jurisdiction to decide the issue at the February 28, 2003 hearing, which determination was linked to the fact that an appeal could have been brought. The claimant said that if the respondent had brought an appeal instead of the application with respect to this issue the claimant would have been entitled to separate costs. The claimant submitted that when the respondent essentially went to the wrong forum, it should not be deprived of separate costs when it would have received costs at the Court of Appeal.

[25]  The respondent continued to maintain that this application could not be seen as a separate matter.

[26]  While the matter might have been brought as an appeal, it was not and we are governed by what actually happened. The respondent brought a Notice of Motion seeking a small amendment to the order, allegedly to make the order consistent with what was said in the reasons. The application took about two hours to be heard and was dismissed in written reasons. Although it is not strictly relevant we note that more procedural steps would have been required if an appeal had been brought. The claimant is not entitled to a separate bill of costs for this application. It is limited to items 16 and 17 for the pre-hearing conference heard on February 6, 2003 (half day) and items 12 and 13 for the actual application heard on February 28, 2003 (half day). The fixed units for these items related to the February 2003 application total 6½ units which will be added to the legal bill of costs discussed below.

[27]  The $142.20 in disbursements will be added to the other legal disbursements discussed below.

5.2.3  New Legal Bill of Costs

[28]  Mr. Alexander, counsel for the claimant, presented the following bill of costs for legal work incurred by the claimant. The 31 units awarded on the section 48 application for legal costs were deducted from the maximum units on the appropriate items and in almost every case the difference was claimed. These 31 units already awarded are indicated in brackets. The 120 units for items 18 and 19 are included but the respondent paid these before the hearing in May 2001. There are no units claimed in this bill of costs for the application heard on February 28, 2003 as they were claimed separately and are dealt with above.

Item Description Permitted Units Claimed
1 Correspondence, conferences, instructions, investigations or negotiations by a claimant and counsel relating to a claim, whether before or after commencement, for which provision is not made elsewhere in this tariff 1-20 4
(8)
4 Instructing expert witness if witness prepares a report, for each expert (maximum of 3 witnesses, without leave)
6 experts x 5 units
1-5 23
(7)
5 Every process for commencing and Prosecuting a claim before the board 1-10 7
(3)
6 Process for obtaining discovery and inspection of documents 1-10 10
7 Process for giving discovery and inspection of documents 1-10 8
(2)
10 Preparation for examination of a person coming under Item 11 for each day of attendance    
  (a) by party conducting examination 3 5
  (b) by party being examined 2 (2)
11 Attendance on examination of a person for discovery, on affidavit, for each day    
  (a) by party conducting examination 6
  (b) by party being examined 5 (3)
12 Preparation for application referred to in Item 13, for each day of hearing, if the hearing has commenced
If opposed 4 x ½ days
3 6
13 Interlocutory application for each day
If opposed 4 x ½ days
5 6
(4)
14 Preparation for attendance referred to in Item 15, for each day of attendance
2½ days est
2 5 est
15 Attendance before the board to settle an order or to assess costs, for each day
2½ days est
4 10 est
16 Preparation for attendance referred to in Item 17 for each day
2 x ½ days
2 2
17 Attendance at a pre-trial conference for each day
2 x ½ days
3 3
18 Preparation for hearing, if claim set down, for each day of hearing, to a maximum of 30 units 5 30
19 Attendance at hearing of claim or of an issue in a claim, for each day 10 90
20 Written argument, if requested or ordered by the board 1-10 10
21 Process for setting down claim for hearing 1 1
23 Travel by a solicitor to attend any hearing, application, examination or other analogous proceeding if held more than 40 km from the place where the solicitor carries on business, for each day of travel by the solicitor
7 days
2 14
Total new units including 120 units paid in May 2003 239½
( ) units in brackets allowed in 2001 section 48 decision

[29] The respondent's general position as set out above is that the costs are excessive. The maximum is being claimed for most items. The fact that the matter was set down six times for hearing together with the change in counsel necessarily means that there was duplication for which the respondent should not have to pay. For those items already claimed in the previous section 48 hearing, no more units should be awarded for the reasons provided in that hearing.

[30]  The claimant says that while the costs are high, it was necessary to proceed to the hearing since the respondent refused to recognize any injurious affection to the remaining land and indeed its acknowledgement of the amount in issue kept decreasing over time. Mr. Craig asserts that there was little overlap between the work done by Mr. Alexander and the work done by previous counsel.

[31]  While the claimant tried to argue that any duplication of work between Mr. Melville and Mr. Alexander was minimal, the main issue with respect to duplication, as pointed out in the section 48 reasons (at para 22) is that in reviewing a Tariff account there must be consideration of pre-Tariff work that has been allowed. We now have the actual accounts for the work done by Mr. Melville between June 1994 and June 1999. This work included filing a Form A, revising the Form A, instructing the appraiser Mr. Rack, preparing three lists of documents, preparation and attendance at examinations for discovery and setting the matter down for hearing several times. The pre-Tariff accounts include 124 hours billed by Mr. Melville and 26 hours by a legal assistant. We also had Peterson Stark's accounts for post Tariff work from the section 48 application. These include 101 hours by Mr. Melville and 25 hours by a legal assistant. We did not have any accounts from Cox Taylor. When the Tariff provides for a maximum number of units for various items, consideration of pre-Tariff work under those particular items must be given. See Chu v. School District No. 36 (Surrey) (2001), 72 L.C.R. 89 (B.C.E.C.B.) and Budd v. British Columbia (Minister of Transportation and Highways) (2001), 72 L.C.R. 114 (B.C.E.C.B.). There is also the issue of work that was unnecessary because of the history of repeated adjournments. See para 24 of the section 48 reasons. The respondent is only responsible for those costs that were reasonably incurred.

[32]  I have already considered these two factors on each item presented in the legal bill of costs at the section 48 hearing. I now have some very general affidavit evidence that duplication of work by new counsel was minimal. Nonetheless I accept that there must have been some duplicative work. I also have the final board decision on compensation that provides some basis for considering the factors set out in section 45(10), in particular, the degree of success. I am not disputing that Cox Taylor did considerable work in taking this matter to hearing and that there was some degree of success when compared with the advance payment. However, under the Tariff, the claimant is only entitled to one bill of costs taking into account the pre-Tariff work. I will deal with each of the items in turn keeping in mind the pre-Tariff work, the unnecessary work as a result of the history of delay, the board's comments and any applicable factors under section 45(10) and the Tariff.

[33]  Dealing first with item 1, correspondence and conferences, and item 5, prosecuting a claim, I would agree that this matter generally is one upon which a great deal of time should ordinarily have been spent and that as a result if I had one overall bill of costs under the Tariff I would allow a maximum or near maximum number of units for these two items. I did allow 8 units for item 1 and 3 units for item 5 in the section 48 reasons. However, as already set out in those reasons, the claimant has already billed substantial amounts for these two items pre-Tariff. No further units are allowed.

[34]  As for item 4, instructing experts, the claimant is asking for a total of 30 units or 5 units for each of six experts, taking into account the 7 units awarded on the section 48 hearing. In addition to the two appraisers there were five other experts whose reports were attached to the Royal Lepage appraisal report and whose accounts are detailed above, as well as in the section 48 reasons. All five of these other experts testified at the hearing. The Tariff provides that a claimant can be allowed between 1 to 5 units for instruction of each expert with a maximum of three witnesses without leave. The respondent objects to the claimant receiving more than 15 units total because no leave was obtained and in addition points to the work done pre-Tariff. This item was addressed at para 26 of the section 48 reasons. I now have the pre-Tariff accounts from Mr. Melville and note that they record considerable time with Mr. Rack, the initial appraiser. However, there are only limited references to some of the other five experts. It appears that most of Mr. Melville's work with the other five experts occurred during the post Tariff accounts. I do not have Mr. Alexander's accounts but he says that he continued to do work under this item including preparing the witnesses for the hearing.

[35]  I will deal first with the issue of the number of experts. The Tariff provides for a maximum of three experts unless leave has been obtained from the board. As indicated above I accept that given the circumstances of the partial taking the claim for injurious affection to the remainder was complicated. The respondent has conceded that the accounts for the five reports from the other experts (an engineer, a geotechnical engineer, a planner, a surveyor, and a quantity surveyor) were proper disbursements that were necessary for the claimant to assert its claim. If the accounts for the five expert reports were proper disbursements then this is an important factor in the claimant being entitled to the costs to instruct these experts. So too is the fact that all of these other experts testified at the hearing. While the provision of obtaining leave for more than three experts implies a separate application to the board before a hearing, I conclude that it is not too late at a section 45 hearing to obtain this leave. I note that under Van Daele v. Van Daele (1984), 56 B.C.L.R. 178 (C.A.) the test for a disbursement including an expert report is whether at the time that the disbursement was incurred it was "a proper disbursement in the sense of not being extravagant, negligent, mistaken or a result of excessive caution or excessive zeal". In considering item 4, it is possible to apply a similar retrospective test. I allow the claimant to claim for instructing six experts.

[36]  Turning to the number of units to instruct each of the six experts, if this matter was entirely under the Tariff the maximum number of 5 units would be allowed for instructing an appraiser. The other experts were secondary and their reports were not as detailed, although they all testified at the hearing. I would allow less than 5 units for each of the other experts. I have previously allowed 7 units for this item. As considering all relevant factors, including the pre-Tariff work, I allow 11 new units for this item.

[37]  Items 6 and 7 are to do with discovery of documents. Units for these same items were previously claimed in the section 48 application and 2 units were allowed for item 7. I now have Mr. Melville's pre-Tariff accounts and note a number of entries for item 7, providing discovery of documents. Most of the time spent on this item was by the legal assistant (approximately 21 hours) with only a few hours by counsel (approximately 3 hours). There are also some 18 hours included in Mr. Melville's post Tariff accounts, again with the majority of the time spent by the legal assistant. I agree in this case that there were a large number of the claimant's documents that were relevant. If this matter was entirely under the Tariff I would expect near maximum units for providing discovery of documents under item 7. It was also the case that there was some difficulty, at least at the beginning, with Mr. Craig providing all the relevant documents. There were repeated requests for more documents arising from examinations for discovery and one or more notices of motion and case managements discussed Mr. Craig's continued delay in supplying these documents. See para 25 of the section 48 decision. I did not have Mr. Alexander's accounts and I had no evidence of any further documents being provided by the claimant after the change in solicitor. As a result I must assume that no further work was done under this item by Mr. Alexander. I have already allowed 2 units for this item. Taking into account the work done pre-Tariff I allow 2 new units for Mr. Melville's work post Tariff.

[38]  With respect to item 6, obtaining documents from the respondent I now have Mr. Melville's pre-Tariff accounts and note two minor entries with respect to this item. In his affidavit Mr. Melville attributed only 0.3 hours post Tariff to reviewing a supplemental List of Documents from the respondent. If this matter was entirely under the Tariff from the evidence I was given I would expect a minimal number of units to be allowed. I did not have Mr. Alexander's accounts and I did not have any evidence of further new documents being provided by the respondent after the change in solicitor. Again I must assume that no work was done under this item by Mr. Alexander. I allowed no units for this item at the section 48 hearing. On the evidence I received I deny the claim for this item.

[39]  Items 10 and 11 are to do with preparation and attendance at discoveries. As I have indicated I did not have Mr. Alexander's accounts and I must assume that no work was done under this item by Mr. Alexander. The units for discoveries were previously claimed in the section 48 application for three discoveries that appear on Mr. Melville's accounts post Tariff. See para 29 in the section 48 reasons which discusses some of the difficulties encountered in the examination of Mr. Craig. I have reviewed Mr. Melville's accounts both pre and post Tariff. Although Mr. Craig could have been more responsive (which would have resulted in less time at discoveries) I agree that this matter was complex and as a result allow 3½ new units for a further half day of discovery (1 unit for item 10 and 2½ units for item 11).

[40]  The next items are 12 and 13, preparing and attending various applications. At the section 48 application a total of 5 half days for preparation and attendance at applications were claimed with specified dates. All but one specific application was disallowed. The difficulty with this claim is that the dates are not set down and I do not have Mr. Alexander's accounts. Without the dates neither the respondent nor I are able to cross reference it for the nature of the application, the time involved or when it occurred and whether it has already been claimed. I am aware of two attendances by Mr. Alexander in April 2001 and in April 2003 in addition to attendances to do with the February 2003 hearing dealt with above and the two applications for costs. These two attendances in April 2001 and 2003 did not involve a specific Notice of Motion for that date and will be categorized as a pre hearing conference rather than an application. Since there does not appear to have been any new applications it seems that the applications at this hearing were for the same applications that were brought in the section 48 hearing. These applications were discussed in detail at para 27 of the section 48 reasons. The claimant says that it has already been penalized for adjourning some of the scheduled hearing dates by an order of the board denying interest between October 1999 and September 2001 and should not be penalized again with costs. However, the test for costs is whether a cost has been necessarily incurred to assert the claim for compensation or damages. I have been given no further evidence to substantiate that these applications were necessary to assert the claim. The test for penalty interest for delay under section 47 is different. It may be that both tests are sometimes met by the same adjournment application for example. No further units for applications are allowed. I repeat that the dates for each application should have been provided.

[41]  The costs of this application and the earlier section 48 application are found in items 14 and 15. I allow these at 3 units and 6 units respectively on the basis of 1½ days for the two hearings.

[42]  Items 16 and 17 are for preparation and attendance at a pre-hearing conference. Two conferences of less than 2½ hours were claimed and again I was not provided with the dates. Nor did I have Mr. Alexander's account. As indicated above I am aware of two conferences not counting the one associated with the hearing in February 2003. I allow 2 units and 3 units respectively.

[43]  The respondent conceded items 18, 19, 20 and 23. It has already paid $21,600 for the 120 units claimed for items 18 and 19 preparing and attending at the hearing. I note that the hearing was eleven days not nine and therefore I allow the claimant 20 more units under item 19. I allow the maximum of 10 units for item 20, written argument, which includes all of the written argument in the matter including the separate written argument submitted for the February 2003 application. I also allow 14 units for travel.

[44]  Finally, item 21, is for setting claim down for a hearing. At the section 48 hearing I did not allow the unit for setting this matter down for the fifth scheduled hearing, when the matter had been set down four times before and three of the adjournments were at the request of the claimant. See para 28 of the section 48 decision. The fifth hearing date was also adjourned at the request of the claimant. Mr. Alexander set it down for the sixth time and the hearing proceeded on that date. While there is no issue that Mr. Alexander's work was reasonably necessary the claimant has already been paid for this item three times over in the pre-Tariff work. I am not able to allow any units for this item.

[45]  Thus the total number of units allowed for legal costs is as follows:

Item Description Permitted Units Claimed Allowed
1 Correspondence, conferences, instructions or meetings with a claimant and counsel relating to a claim, whether before or after commencement, for which provision is not made elsewhere in this tariff 1-20 4
(8)
Nil
4 Instructing expert witness if witness prepares a report, for each expert (maximum of 3 witnesses, without leave)
6 experts x 5 units
1-5 23
(7)
11
5 Every process for commencing and prosecuting a claim before the board 1-10 7
(3)
Nil
6 Process for obtaining discovery and inspection of documents 1-10 10 Nil
7 Process for giving discovery and inspection of documents 1-10 8
(2)
2
10 Preparation for examination of a person coming under Item 11 for each day of attendance    
  (a) by party conducting examination 3 5
  (b) by party being examined 2 (2) 1
11 Attendance on examination of a person for discovery, on affidavit, for each day
  (a) by party conducting examination 6
  (b) by party being examined 5 (5)
12 Preparation for application referred to in Item 13, for each day of hearing
If opposed 4 x ½ days
3 6 Nil
13 Interlocutory application for each day
If opposed 4 x ½ days
5 6
(4)
Nil
14 Preparation for attendance referred to in Item 15, for each day of attendance
1½ days
2 5 est 3
15 Attendance before the board to settle an order or to assess costs, for each day
1½ days
4 10 est 6
16 Preparation for attendance referred to in Item 17 for each day
2 x ½days
2 2 2
17 Attendance at a pre-trial conference for each day
2 x ½ days
3 3 3
18 Preparation for hearing, if claim set down, for each day of hearing, to a maximum of 30 units 5 30 30
19 Attendance at hearing of claim or of an issue in a claim, for each day 10 90 110
20 Written argument, if requested or ordered by the board 1-10 10 10
21 Process for setting down claim for hearing 1 1 Nil
22 Travel by a solicitor to attend any hearing, application, examination or other analogous proceeding if held more than 40 km from the place where the solicitor carries on business, for each day of travel by the solicitor
7 days
2 14 14
Total new units including 120 units paid in May 2003   239.5 194½
( ) units in brackets allowed in 2001 section 48 decision

Taken together with 6½ units for the February 2003 application the total number of units allowed for new legal work is 201 which at Scale 3 is $36,180 plus PST at 7.5% or $38,893.50. $21,600 of this sum has already been paid for preparation and attendance at the hearing but this will be taken into account below. The total bill of costs for legal work from the section 48 review including the differential allowed for scale 3 as well as from this section 45 review is $44,864.10 including PST. This bill of costs belongs to the client and not to any specific lawyer; different lawyers performed different legal work under this bill.

5.2.4  Disbursements on legal bills of costs

[46]  There were disbursements on the Cox Taylor bill of costs of $3,858.87 and on the Peterson Stark account of $1,246.88. There was also $142.20 in disbursements on the second legal bill of costs from Cox Taylor for a total of $5,247.95. A comparison with the disbursements on the Peterson Stark account at the section 48 hearing in 2001 indicates that the disbursements are identical but for a downward revision for photocopying and fax charges at the board accepted rates. At the section 48 hearing, a round figure of $500 was allowed for these disbursements, pending further evidence or agreement. Thus the total outstanding disbursements are $4,747.95.

[47]  The respondent agrees to the disbursements but for photocopying. The Peterson Stark Tariff account billed for 1,603 pages of photocopies between June 1999 and September 2000 and Cox Taylor billed for 3,881 photocopies, not counting the separate bill for the February 2003 hearing. The total photocopying charges sought were $822.60 for 5,484 photocopies. Peterson Stark billed for another approximately 1,600 photocopies on the pre-Tariff legal accounts for work from 1994 through June 1999. About $250 for this expense has already been allowed. The respondent submitted that there must have been duplicative costs for photocopying since the evidence was that Mr. Melville retained his file following the claimant's discharge of Mr. Melville and the resulting fee dispute.

[48]  The claimant says that there were lots of documents for the construction and sale of 30 houses that had to be provided to substantiate their claim for costs incurred as a result of delay. Since the panel hearing a compensation claim consists of three members this also increases the photocopying burden.

[49]  I accept that a large number of documents were necessary for this case. On the other hand in the circumstances of this case I find that there must have been additional photocopying as a result of the change of counsel and appraiser and Mr. Melville's retention of his file. The respondent is not responsible for these additional costs. In addition I have not allowed units for various applications for adjournments and other procedures that were unnecessary to assert the claimant's claim. The respondent is not responsible for photocopying costs associated with these disallowed items. I allow $650 for photocopying which covers over 4,300 photocopies out of the 5,484 claimed at this stage.

[50]  Thus the total disbursements on the legal accounts are allowed at $4,433.15 plus $142.20 from the second bill of costs or $4,575.35 plus $500 already paid.

6.  APPRAISAL COSTS

6.1  Pre-Tariff appraisal accounts

[51]  I was presented with an account for Mr. Rack dated May 21, 1999 for work done from June 1997 until May 1999 and therefore pre-Tariff. This account detailed 57 hours of work at $140 an hour for a total of $7,980. The work included telephone attendances with counsel and the claimant, review of documents, inspection of the subject property, market research, and a few hours towards drafting of a report. Mr. Rack's eventual report was dated March 3, 2000 and not counting the table of contents, the appendices, or the pages with maps or photos, the body of the report only contained 26 pages of narrative and tables including pages of definitions. (While not suggesting that the work and analysis in a report turns on mere length we do note that Mr. Hilts' report by comparison contained 51 pages of narrative and tables.) Although the post Tariff accounts will be considered below it is relevant at this stage to note that there were two further bills post Tariff to complete the report: one dated February 7, 2000 with 31 hours at $150 or $4,650 and one dated March 6, 2000 with 59.5 hours at $150 or $8,940. Thus the total amount claimed by Mr. Rack by March 2000, when the report was completed, was 147 hours or $21,570.

[52]  The respondent paid $5,350 in advance costs for pre-Tariff appraisal work. There also was $5,000 paid for unspecified costs. The respondent's general position was that the costs claimed were excessive.

[53]  In reviewing Mr. Rack's accounts I find that he did some 18 hours of work in June 1997 and there was then a 9 month gap until he spent some seven hours between March and August 1998. There was then another 9 month gap until April and May 1999 when he spent some 31 hours.

[54]  Mr. Rack's report was not used and thus I do not have any comments from the board to assist me in such issues as assessing the degree of success, and the manner in which the work was performed. As I indicated in the section 48 reasons, while each case turns on its own facts, one of the ways to consider global reasonableness is to consider other section 45 hearings and to compare the hourly rates, the number of hours claimed and the fees charged by appraisers for cases of similar complexity. In Ferancik v. Langley (Township) (1997), 62 L.C.R. 291, the then Vice-Chair at p. 312 reviewed a number of other section 45 hearings with respect to the appraisers' accounts. These include Bill's Frontier Restaurant Ltd v. British Columbia (Minister of Transportation and Highways) (1996), 58 L.C.R. 204, a case involving a partial taking in which the compensation hearing occupied some nine days, followed by written argument. One of the appraisal issues in addition to the market value of the land taken and the injurious affection to the remainder was an alleged effect on the good will of the business. The primary appraiser billed for 84 hours of appraisal time at an hourly rate of $110 for a final bill of $9,734. This bill was reduced 20% at the section 45 hearing for various reasons. Buchanan v. School District No. 36 (Surrey) (1997), 61 L.C.R. 288 was a simpler case involving a complete taking of an unimproved lot. It was heard with another case McKinnon v. School District No. 36 (Surrey) (1997), 61 L.C.R. 9 that had similar facts and together the compensation hearings occupied 5 days. The same appraiser was used in both cases and a total of 65 hours of appraisal time was billed in Buchanan at an average hourly rate of just over $100 for a total of $6,677 in fees, while in McKinnon 142 hours were billed at the same hourly rate for a total bill of $15,300. In the section 45 hearings the appraisal costs were reduced 20% in Buchanan and 40% in McKinnon. In Ferancik, which involved a taking of an unimproved lot for a park, the appraiser, who was in fact Mr. Rack, billed for 173 hours of time at an hourly rate of $125 for a total bill of $22,500 in fees. After a review of the accounts and discussion of the cases above, the accounts were reduced 60% to $9,500. One of the factors the former Vice Chair, Fiona St. Clair, commented on in particular was Mr. Rack's hourly rate of $125 at that time as being too high given his qualifications and experience. (The work in this case was for the period 1997-1999, in comparison to the work in Ferancik which was from 1994-1996.) All of these cases included the appraiser's time for writing the report as well as attendance at the hearing.

[55]  Mr. Rack's hourly rate was $140 for the pre-Tariff work and I agree with Ferancik that given Mr. Rack's qualifications and experience it was too high. Although the appraisal issue in this case was more complicated than in Buchanan, McKinnon and Ferancik I find that generally the time spent by Mr. Rack to prepare a report that was not extensive in its analysis was excessive. As a result of these factors I reduce the pre-Tariff account of 57 hours and $7,980 by 35%. I allow $5,187 for pre-Tariff legal accounts.

6.2  Tariff appraisal accounts

6.2.1  Scale 3

[56]  As a result of the board's award the claimant is entitled to the Scale 3 differential of $20 per unit on the appraisal bills of costs that were awarded at Scale 2 on the section 48 hearing in 2001. The calculation is as follows.

  No. of Units Differential PST Total
Appraisal bill of costs 37 $740 NA $740

6.2.2  Number of Bills of Cost

[57]  I was presented with two appraisal bills of cost, one for John Rack and one for David Hilts of Royal Lepage.

[58]  In the section 48 decision I allowed only one appraisal bill of costs in the section 48 decision but left it open for further argument to be brought. The claimant says that before the introduction of the Tariff there were a number of cases in which more than one appraisal account was presented. There is nothing in the Act or the Tariff to prohibit more than one appraisal bill of costs. While it is the case that there is only one bill of costs for legal work no matter how many lawyers have been retained, the claimant submits that the appraisal bill of costs is different from the legal one; it lists items for different components of work rather than for separate procedural steps. As long as there is the overall test of reasonableness to govern how many units are allowed more than one appraisal bill of costs should be considered. Finally, in this case, the claimant says that the second appraisal bill of costs from Mr. Hilts had a wider scope.

[59]  The respondent says that there should not be two bills of costs allowed for appraisers. In this case Mr. Rack's report was abandoned with the change in counsel and never used. As a result the respondent submits that the work by Mr. Hilts is largely duplicative. The respondent does not have to pay for work unless it was necessary to assert the claimant's case.

[60]  In the section 48 reasons at para 17 I discussed the issue of whether more than one appraisal bill of costs could be claimed under the Tariff regime. It is true that prior to the Tariff being introduced, this board sometimes allowed more than one appraisal account where the claimant established that at the time that each expert was retained it was a necessary and reasonable expense. However, the board usually refused the costs of a second duplicative report (Hampton Investments Ltd. v. British Columbia (Minister of Transportation and Highways) (1998), 64 L.C.R. 284) or reduced one or all of the accounts (Bill's Frontier Restaurant Ltd v. British Columbia (Minister of Transportation and Highways) (1996), 58 L.C.R. 204). Under the Tariff on the other hand, and reading it as a whole, I can see no reason why the appraisal bill of costs should be treated any different than the legal bill of costs. While a claimant is free to obtain more than one appraisal report the respondent is only responsible for the costs of a single bill of costs for an appraiser under the Tariff even if work might be done by more than one appraiser. I do not accept the claimant's attempts to distinguish the appraisal bill from the legal bill of costs. As a result I allow the claimant only one appraisal bill of costs.

6.2.3  New Appraisal Bill of Costs

[61]  If only one appraisal bill of costs can be claimed, the two bills that I received must be redrafted into one that takes into account the units already allowed in the section 48 decision. The 37 units already awarded are indicated in brackets. This results in the following:

Item Description Permitted Units Claimed
1 Correspondence, conferences, instructions or meetings with a claimant and counsel relating to a claim, whether before or after commencement, for which provision is not made elsewhere in this tariff 1-20 15
(5)
2 Inspect and research subject property 1-30 25
(5)
3 Market research, including all necessary attendances 1-20 11
(9)
4 Inspection of comparable properties 1-20 20
5 Analysis of data and preparation of a report or reports 1-60 42
(18)
6 Preparation for hearing, if claim set down, for each day of necessary attendance of appraiser, to a maximum of 30 units4 days 5 20
7 Attendance at hearing of claim or of an issue in a claim, for each day of necessary attendance of appraiser4 days 10 40
  Total new units   173
( ) units in brackets allowed in 2001 section 48 decision

[62]  As indicated above I have Mr. Rack's pre-Tariff account dated May 21, 1999 for 57 hours or $7,980. This work included telephone attendances with counsel and the claimant, review of documents, inspection of the subject property, market research, a few hours towards drafting of a report and reviewing a report from the respondent. There were also accounts dated February 7, 2000 for 31 hours or $4,650, March 6, 2000 for 59.5 hours or $8,940 and August 15, 2000 for 27.8 hours or $4,170. Finally I had Mr. Rack's report which was filed with the board in March 2000. At the section 48 hearing I was provided with an appraisal account from Mr. Hilts dated June 29, 2001 in the sum of $5,000. Neither the number of hours or hourly rate was provided. I also had Mr. Hilts' report which was relied on at the compensation hearing. At para 215 of the compensation decision ((2002) 79 L.C.R. 81) the board had this to say:

Despite its shortcomings, the appraisal analysis by Mr. Hilts, properly adjusted, contains the necessary ingredients by which the board considers that it is able to arrive at a determination of the compensation properly payable in this matter.

Mr. Hilts' report sets out his qualifications which include a Bachelor of Commerce in Urban Land Economics from U.B.C. in 1983 and an AACI accreditation at some unstated date. I had no other accounts from Mr. Hilts nor did I have anything in the nature of time sheets.

[63]  As indicated above, in considering the units to be awarded I may consider the comments by the board as well as the mandatory factors under section 45(10) and the Tariff. Another important factor is the pre-Tariff work done by Mr. Rack and allowed at $5,187. I will deal with each of the items in turn keeping in mind these factors.

[64]  Item 1 is for correspondence and conferences and other activities for which provision is not made elsewhere. I agree that in this case the complexity and the dependence on planners, surveyors and engineers means that this item is one upon which a great deal of time should ordinarily have been spent. If I had one overall bill of costs under the Tariff I would allow a maximum or near maximum number of units for this item. I did allow 5 units for this item in the section 48 reasons. Some 10 hours of Mr. Rack's time in the pre-Tariff account of 57 hours appear to have been for this item, although this account was reduced about 35%. I allow 8 more units.

[65]  Item 2 is for the inspecting and researching of subject property. Again given the complexity this item is one where one would expect a near maximum number of units. I allowed 5 units for this item in the section 48 reasons. Very approximately 25 hours of the pre-Tariff account appear to have been for this item. I allow 7 more units.

[66]  Turning to item 3 for market research, I already allowed 9 units in the section 48 reasons. Approximately 10 hours of the pre-Tariff account appear to have been spent on this item. In his report Mr. Rack used 15 unimproved lots as comparables to obtain a value for lots on the subject property. Several of these lots were adjacent to each other and appeared to be part of the same subdivision. In his report Mr. Rack states that these sales were "to a large extent obtained from a computer search of the Real Estate Board of Greater Vancouver records for the Coquitlam area from 1992 to 1994 and a search of BC Assessment Authority records". Mr. Hilts used 22 lot sales, 6 of which overlapped with Mr. Rack's sales in 7 different subdivisions. He also used sales of 16 improved lots in 7 different subdivisions. The market research was not as complex as it is in some cases but, on the other hand, the claimant achieved some success in relation to the advance payment. I allow 4 more units.

[67]  No units have previously been allowed for item 4 for inspection of comparable properties. Mr. Melville did not attribute any work in the relevant post Tariff accounts from Mr. Rack under this item. In Mr. Rack's pre-Tariff account it appears that none of the work performed was under this item. Although the maximum units are claimed this item does not appear to have much, if any, importance in this case. I allow 3 units assuming some drive by inspections of at least some of the lots that were used.

[68]  Item 5 is for analysis of data and preparation of an appraisal report. This matter was a partial taking and both Mr. Rack and Mr. Hilts did a before and after subdivision approach. There was the incorporation of work by planners, surveyors, and different types of engineers. Mr. Hilts incorporated a delay claim, which was accepted in part by the board. If this matter had been completely under the Tariff I agree that the number of units allowed would have been near the maximum. I allowed 18 units for this item at the section 48 hearing. In the pre-Tariff account very approximately 10 hours out of 57 were spent in analysis of the data and drafting of the report. Taking into account the pre-Tariff work and the degree of success I allow 33 units.

[69]  There also have been no units allowed previously for items 6 and 7, for hearing preparation and attendance at the hearing. These are fixed units and there being no dispute about the number of days that Mr. Hilts attended the hearing 20 and 40 units are allowed respectively.

[70]  Thus the total number of units allowed in this hearing is:

Item Description Permitted Units Claimed Allowed
1 Correspondence, conferences, instructions or meetings with a claimant and counsel relating to a claim, whether before or after commencement, for which provision is not made elsewhere in this tariff 1-20 15
(5)
8
2 Inspect and research subject property 1-30 25
(5)
7
3 Market research, including all necessary attendances 1-20 11
(9)
4
4 Inspection of comparable properties 1-20 20 3
5 Analysis of data and preparation of a report or reports 1-60 42
(18)
33
6 Preparation for hearing, if claim set down, for each day of necessary attendance of appraiser, to a maximum of 30 units
4 days
5 20 20
7 Attendance at hearing of claim or of an issue in a claim, for each day of necessary attendance of appraiser
4 days
10 40 40
  Total   173 115

The total number of units allowed for new appraisal work is 115 which at Scale 3 is $13,800. The total appraisal bill of costs from the section 48 review together with the differential for Scale 3 and this final review is $18,240. This bill of costs belongs to the client and not to either of the appraisers who performed appraisal work.

7.  CLAIMANT'S OWN DISBURSEMENTS

[71]  The claimant claims for its own disbursements incurred to assert its claim for compensation and damages as follows:

Telephone charges $ 273.41
Photocopying and fax charges $3,620.85
Travel costs $ 621.95
Courier costs $ 52.78
Total $4,568.99

[72]  The respondent objected to these expenses as part of its claim that the costs were excessive. Mr. McDonell submitted that there was nothing to tie any telephone charges to the claim. There was no evidence to support the photocopying and fax charges and in any event these charges following on the discharge of Mr. Melville of Peterson Stark were duplicative and unnecessary. Finally the respondent questioned the travel costs for Mr. Craig the principal of the claimant attending the compensation hearing for every day including argument.

[73]  With respect to the telephone charges totaling $273.41 there were some partial printouts for cellular telephone calls made by Mr. Craig, principal of the claimant, between June and December 2001. These printouts indicated the number called and the cost of each call. There was a chart that extracted amounts for particular cellular calls in various months that could be cross referenced with the cellular telephone printouts. There was also another chart for telephone calls that listed various amounts for each month from January to November 2001. Some of these months listed numerous amounts which were added together for a total while other months listed totals from which various amounts were deducted. However, there was no explanation of this chart nor were there any back up telephone bills.

[74]  When disbursements are not agreed they must be strictly proved. See Holzapfel v. Matheusik (1987), 14 B.C.L.R. (2d) 135 (C.A.) and the discussion of this case in Ingham v Creston (Town) (2001), 73 L.C.R.129 (B.C.E.C.B.) at para 60-62. While the exhibit for the telephone calls is not properly explained the cellular telephone invoices appear to support telephone calls to counsel and experts shortly before the compensation hearing of this matter. On the other hand while Mr. Craig may have spent some time extracting costs of other telephone calls over almost a year, there is no explanation of his chart, there is no back up documentation to show that the particular amounts were incurred, and that the amounts were for calls that were related to this case rather than Mr. Craig's business. In the circumstances of only partial evidence of telephone costs related to asserting its claim for compensation or damages I allow $100 for these expenses.

[75]  With respect to the photocopying and fax charges totaling $3,620.95 the only evidence was Mr. Craig's affidavit saying photocopying was $0.15 a page. There was no evidence about the breakdown between photocopying and fax charges and no detail of the number of pages or the unit rates for faxes. There was also no indication of when these costs were incurred and there is the issue of duplication as a result of Mr. Melville retaining his file. I accept that the claimant no doubt incurred some costs for photocopying and faxes to assert its claim for compensation or damages that were not a duplication of previous costs. However, as indicated above the onus is on the claimant to strictly prove disbursements that are in dispute. In the circumstances of virtually no evidence I allow a nominal sum of $200.

[76]  The travel charges of $621.95 were made up of travel charges for Mr. Craig, the principal of the claimant, to attend discoveries and the hearing plus one hotel bill for argument in Victoria. The respondent questioned whether travel charges should be paid for Mr. Craig to attend every day of the hearing. A claimant is entitled to reasonable costs that are necessarily incurred to assert its claim. I accept that the presence of the principal of a corporate claimant at a compensation hearing, especially when it is a complicated hearing, is a necessary attendance. However, the claimant has claimed for 11 days travel in Vancouver as well as travel for two days of argument in Victoria. The hearing in Vancouver occupied only 9 days. In addition, I have only allowed two of three days claimed for discovery under the legal bill of costs because of evidence of delay and non responsiveness. If there are reasons to deny units claimed for discovery, the claimant is not entitled to travel costs for those days. I allow $500 in travel costs.

[77]  Finally the claimant claims $52.78 for couriers. I was given a chart with particular fees for three months but no back up documentation. The respondent did not specifically dispute this claim. There ought to have been better evidence but in the circumstances I allow the claim for $52.78.

[78]  Thus the total of the claimant's disbursements that have been allowed are $852.78.

6.  SUMMARY

[79]  I have allowed the following costs:

  Previously Allowed Allowed in this review Total
Legal costs -- pre-Tariff   22,470.00 22,470.00
-- section 48 4,643.80 1,326.80 5,970.60
    38,893.50 38,893.50
Disbursements (on tariff legal accounts only) 500.00 4,575.35 5,075.35
Appraisal costs -- pre-Tariff   5,187.00 5,187.00
-- section 48 3,700.00 740.00 4,440.00
    13,800.00 13,800.00
Other experts 8,294.55 9,100.42 17,394.97
Claimant's disbursements              852.78 852.78
Total 17,138.35 96,945.85 114,084.20
Minus costs already paid     -75,803.23
Outstanding amount     38,280.97

Thus the respondent must pay the claimant $38,280.97 in outstanding costs.

 

Government of British Columbia