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 |
5½ |
|
(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 |
5½ |
|
|
(b) by party being examined |
5 |
(5) |
2½ |
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.
|