May 27, 1991,   E.C.B. 1/89/022 (46 L.C.R. 66)

ORDER

1. BACKGROUND

The Claimant is the owner and operator of a cranberry and blueberry farm located in the Municipality of Richmond. In September, 1985 and January, 1986 the Respondent expropriated pursuant to section 6 of the Highway Act, R.S.B.C. 1979, c.167 two parcels of the Claimant's land containing in total 8.6 acres to establish a right-of-way for the Richmond East/West Freeway.

A two-week hearing to determine compensation was scheduled to commence on August 20, 1990. The amount of the claim was in the order of $1.3 million. In December, 1985 the Respondent made an advance payment to the Claimant of $200,000 and in February, 1988, a further advance payment of $218,673.69. The second payment included $30,000 to cover interest to March 1, 1987 and $21,289.69 to cover some of the Claimant's costs. The net amount advanced for land expropriated and disturbance damages totalled $367,384.

On August 20, 1990, the day on which the hearing was to begin, settlement discussions ensued and after a full day of negotiations the Chairman of the Expropriation Compensation Board (the "Board") was advised that a settlement in the amount of $700,000, excluding payment of costs and interest, had been concluded. Both counsel then met with the Chairman to outline the terms of settlement. It became evident during this meeting that while payment of interest pursuant to s.45(l) of the Expropriation Act, S.B.C. 1987, c.23¹ had been tentatively resolved, the payment of additional interest pursuant to s.45(4) remained an issue. On the following day, August 21, 1990, a Consent Order, approved and signed by both counsel, was filed with the Board, endorsed by the Chairman, entered and date-stamped. The Consent Order reads, in part, as follows:

This claim for compensation pursuant to the Expropriation Act being set for hearing Monday, August 20, 1990;

And counsel for the Claimant and Respondent having advised that they have resolved by agreement the compensation to be paid by the Respondent to the Claimant with respect to the claim of the Claimant;

AND BY CONSENT:

1.	The Expropriation Compensation Board orders that the Respondent pay to the Claimant the sum of $700,000 plus costs in accordance with s.44 of the Expropriation Act, and interest pursuant to s.45 of the Expropriation Act;
2.	For the purpose of calculating interest it is ordered that:
	(a)	interest shall be calculated on the sum of $494,000.00 from January 22, 1986,
	(b)	interest shall be calculated on the sum of $80,000.00 from October 21, 1987,
	(c)	interest shall be calculated on the sum of $47,000.00 from September 30, 1989;
3.	If the parties are unable to agree as to the calculation of costs and interest this matter shall be remitted to the Board for an Order as to interest payable and/or determination of costs.

2. APPLICATION BY CLAIMANT FOR A CERTIFICATE PURSUANT TO s.25(3) OF THE EXPROPRIATION ACT

In September, 1990 the Respondent paid to the Claimant the amount outstanding according to its interpretation of s.45 as set out in the Consent Order. The amount paid did not include additional interest as provided for pursuant to s.45(4) which the Respondent submits is not payable notwithstanding that the Consent Order states that interest shall be paid "pursuant to s.45 of the Expropriation Act."

Since the amount of interest payable could not be resolved the Claimant brought an application pursuant to s.25(3). Section 25(3) states:

25.	(3)	Where the board determines that an owner is entitled to compensation in excess of
		(a)	the amount paid under section 19, or
		(b)	any other amount paid by the expropriating authority on account of compensation,

it shall issue a certificate for the amount payable, together with interest.

The application of the Claimant is for:

1.	the issuance of a Certificate by the Board for an amount payable to the Claimant pursuant to the Board's Consent Order dated August 21, 1990 or, in the alternative,
2.	an Order setting aside the Consent Order and assigning a date for hearing of the Claimant's claim for compensation, and
3.	an Order that the Claimant's costs of this application be paid in accordance with s.44.

Three further issues arose during this hearing which relate to the calculation of interest. They are: 1) Is interest payable pursuant to s.45(l) to be calculated on a simple or compound basis?;  2) Is interest payable on the compensation awarded for that period prior to the Expropriation Act coming into force to be calculated pursuant to s.45?; and 3) If interest is payable pursuant to s.45(4), from what date does it commence to run?

3. THE CONSENT ORDER

a) Position of the Claimant

Counsel for the Claimant submits that the settlement is the result of a bargain between the parties the evidence of which is found in the Consent Order, an instrument having the same legal effect as an award by a tribunal or a judgment of the court. As authority, counsel cited Kinch v. Walcott et al (1929), 3 W.W.R. 13, 21, a decision of the Privy Council which held:

For such a purpose an order by consent, not discharged by mutual agreement, and remaining unreduced, is as effective as an order of the Court made otherwise than by consent and not discharged on appeal. A party bound by a consent order, as was tersely observed by Byrne, J., in Wilding v. Sanderson [1897] 2 Ch. 534, at 544, 66 L.J. Ch. 684, "must when once it has been completed, obey it, unless and until he can get it set aside in proceedings duly constituted for the purpose." In other words the only difference in this respect between an order made by consent and one not so made is that the first stands unless and until it is discharged by mutual agreement or is set aside by another order of the Court; the second stands unless and until it is discharged on appeal. And this simple consideration supplies at once the answer to this appeal. ... It is, first of all, in no sense true that the order is a nullity. At the best, so far as the appellant is concerned, the order embodies an agreement which possibly may still remain voidable at his instance. But that means that the order stands until it has been effectively set aside. (Emphasis added.)

Counsel also cited and relied upon Kitchen v. Crown Coal Company Ltd. (1932), 1 W.W.R. 696 at pp.703-4 (Alta. C.A.); Rimer v. Rimer (1981), 2 W.W.R. 328, 339 (Alta, C.A.) to support his submission that a Consent Order is as binding on the parties as any other order of the Board.

b) Position of the Respondent

Counsel for the Respondent submits that the words "awarded" and "determination" as used in s.45 mean a formal adjudication by the Board after having heard the evidence and delivering a written award. The Respondent argues that an entry of a Consent Order is not a determination of compensation as contemplated in the Expropriation Act. In this case a hearing did not take place. The Board was not required to determine compensation payable, and therefore counsel submits that an award was not made, and in its absence, the Board is without jurisdiction to order payment of "penalty" interest pursuant to S.45(4). Counsel referred to several dictionary meanings of the word "award".

An award is accordingly, in the first place, the taking [of] a matter into consideration and pronouncing judgement upon it ...

An instrument embodying an arbitrator's decision on a matter submitted to him.

Jowitt's Dictionary of English Law (2nd ed.), pp.169, 170.

The decision or determination rendered by arbitrators or commissioners, or other private or extrajudicial deciders, upon a controversy submitted to them; also the writing or document embodying such decision.

Black's Law Dictionary (5th ed.), p.125.

Counsel cited a decision of the New Brunswick Court of Queen's Bench, Trial Division in City of Moncton v. Canadian Union of Public Employees, Local 51 (1987), 78 New Brunswick Reports (2nd) 271, 277 where the court adopted the language found in Re Fish International Canada and International Association of Bridge, Structural & Ornamental Iron Workers, Local 725 (1979) 104 D.L.R. (3d) 306, 309 which considered the meaning of "award" as used in the Alberta Labour Act, 1973, c.33, s.108. The court stated that:

A true award is really an answer by the board to a difference or claim submitted to it by the parties to the collective agreement.

In summary, counsel submits that as there was no award s.45(4) does not apply.

c) The Board's Conclusion

I find that the Consent Order is binding on the parties and that it has the same force and effect as if it were an award following a full hearing before the Board. When counsel representing both the Claimant and the Respondent present to the Board a document which they have approved as to form and consented to as to content, they are asking that the Board make the determination upon which they have agreed. The parties by so asking the Board to approve the instrument containing the agreement have in fact agreed that a formal hearing to determine compensation is, at their request, not required. I adopt the words of the Privy Council in Kinch v. Walcott et al, supra, at p . 21 "... this simple consideration supplies at once the answer to this appeal. ... the order stands until it has been effectively set aside." I conclude that the same considerations apply to an award by consent or otherwise by this Board.

4. CALCULATION OF INTEREST

a) Compound Interest or Simple Interest

Counsel for the Claimant submits that if a logical meaning is to be given to the words "to be calculated annually" the interest payable cannot be calculated other than on a compound basis. He cited the decision of the Supreme Court of Canada in British Pacific Properties v. Minister of Highways and Public Works (1980), 112 D.L.R. (3d) 1, [1980] 2 S.C.R. 283, (1980), 20 L.C.R. 1, 6 where Laskin, C.J.C., who delivered the decision of the court, stated:

I agree with Craig, J.A., that if s.3 of the Interest Act was applicable so that the rate of interest was 5%, there could be no compounding because s.3 fixes that rate as a rate per annum. In the present case, it is my conclusion that s. 3 does not apply and I see no error in principle here in an award that prescribes compound interest. Nemetz, C.J.B.C., dealt with this point and I have nothing to add to his approving reasons.

It can be concluded from these remarks that there is no general rule of law against the compounding of interest payable by an expropriating authority. As stated by the British Columbia Court of Appeal in Minister of Highways for British Columbia v. Richland Estates Ltd. (1973), 4 L.C.R. 85 at pp.86-7:

It will be noted that what is to be determined is not simply the value of the land taken, but compensation. I interpret the word "compensation" in the context of this statute to mean that the owner is to be made "economically whole". See Irving Oil Co. Ltd. v. The King, [1946] 4 D.L.R. 625, [1946] S.C.R. 551 per Rand, J., at p.633.

There is nothing in s.16 which restricts the elements which are to be considered in determining the compensation for lands taken ...

This being so, recognition must be given to all the elements of compensation that will ensure that the owner is made economically whole. Interest is one of those elements.

The Respondent filed in support of its calculation of interest payable the report of Dr. Stanley W. Hamilton, an associate professor of urban land economics at the University of British Columbia, who is an expert in the field of real property financial analysis. At p. 2 of his report he defined a simple interest loan as "a loan arrangement where interest is calculated, payable, and paid, once and only once, at the end of the period of the loan." He then defined a compound interest loan as "a loan with any interest calculation which is not expressly stated to be simple interest." Based on Dr. Hamilton's report, counsel for the Respondent conceded that the words "to be calculated annually" mean that interest payable pursuant to s.45(l) is to be compounded annually. With this, I agree.

The meaning of the words "calculated annually" in s.45(l) must be considered and interpreted in light of the expression "at an annual rate of 5%" found in s.45(4). This subsection deals with the payment of additional interest. The words "calculated annually" and "at an annual rate of 5%" would indicate the Legislature has drawn a distinction as to the method by which interest is to be calculated as between ss.45(l) and (4). When the Expropriation Act states that interest is "to be calculated annually" these words do not refer to the rate of interest to be paid because s.45(3) requires that two different calculations of interest occur in each calendar year, that is, interest is calculated at stated intervals. Interest is then earned on the combined annual total of the then outstanding principal and interest.

When comparing s.45(l) with s.45(4) the method for calculation of interest is treated differently. Section 45(4) states that additional interest shall be paid "at an annual rate of 5%." This is simple interest as it is based on an annual rate or a rate per annum. British Pacific Properties Ltd. (S.C.C.), supra, 20 L.C.R. 1, 6 and (1979), 19 L.C.R. 99, 117 (B.C.C.A.). This expression, in my opinion, means that interest is computed on the outstanding principal owing from time to time for the entire term and the interest is payable only once and, in this case, as of the date of the award which is the date when the Consent Order was entered.

b) Calculation of interest for the period prior to the Expropriation Act coming into force

While the Consent Order states that interest shall be paid pursuant to s.45, a distinction is not made as to the rates of interest and method of calculation to be applied for that period between the date of expropriation and the date on which the Expropriation Act, came into force, that is, December 23, 1987. This distinction is important in that the rate and method of calculation of interest prior to December 23, 1987 is different than the rate and method of calculation of interest under the Expropriation Act.

Counsel for the Respondent submits that the calculation of interest for the period before December 23, 1987 should be based on the prevailing 90-day rate on finance company paper compounded every 90 days from the date of expropriation to December 23, 1987. This method of calculation of interest was determined to be appropriate in British Pacific Properties Ltd. v. Minister of Highways & Public Works (1978), 14 L.C.R. 299, 314 and following. The award as to interest in that case was varied by the British Columbia Court of Appeal, 19 L.C.R. 99, [1980] 2 W . W.R. 525, Nemetz C.J.B.C. dissenting, and restored by the Supreme Court of Canada 20 L.C.R. l, 112 D.L.R. (3d) 1, [1980] 2 S.C.R. 283. This method for calculation of interest has been followed by this Board in Armstrong et al v. Minister of Transportation & Highways et al (1989) 42 L.C.R. 32 at pp.43, 44 and May et al v. Ministry of Transportation & Highways (1991) 44 L.C.R. 288 at pp.299, 300.

However, in the instant case, the parties agreed that as part of the general settlement of compensation payable interest is to be paid pursuant to s.45. Counsel for the Claimant cited Minister of Transportation & Highways v. Granite Development Ltd. (No. 2) (1987) 38 L.C.R. 9, 25 (B.C.C.A.) where the court held the parties to be bound to an agreed statement of facts, one of which was that interest would be "calculated on the basis of the rate set out in the Court Order Interest Act. " In the Granite case, the court disallowed interest to be compounded as ordered by the umpire because the Court Order Interest Act, R.S.B.C. 1979, c.76 specifically disallowed the compounding of interest. In other words, the parties were held to their agreement. In this case the parties made a bargain to be governed by the rate and method of calculation of interest pursuant to s.45 for that period prior to the Expropriation Act coming into force.

I cannot reach any other conclusion than that the rates of interest and method of calculation both before and after December 23, 1987 shall be governed by s.45.

Subject to my finding as to payment of additional interest pursuant to s.45(4), the interest and rate of interest payable from January 22, 1986, the date on which the parties agreed that interest would commence to run, until paid, shall be governed by ss. 45(l), (2) and (3) which state:

45.	(1)	The expropriating authority shall pay interest on any amount awarded in excess of any amount paid by the expropriating authority under section 19(l) or (11) or otherwise, to be calculated annually,
		(a)	on the market value portion of compensation, from the date that the owner gave up possession, and
		(b)	on any other amount, from
			(i)	the date the loss or damages were incurred, or
			(ii)	any other date that the board considers reasonable.
	(2)	Interest shall be payable at an annual rate that is equal to the prime lending rate of the banker to the Crown in right of the Province.
	(3)	During the first 6 months of a year, interest shall be calculated at the interest rate under subsection (2) as at January 1, and, during the last 6 months, interest shall be calculated at the interest rate under subsection (2) as at July 1.

The prime lending rates of the banker to the Crown in right of the Province on the statutory dates set forth in subsection (3) are as follows:

January 1, 1986	-	10%		July 1, 1986	-	10.25%
January 1, 1987	-	9.75%		July 1, 1987	-	9.50%
January 1, 1988	-	9.75%		July 1, 1988	-	10.75%
January 1, 1989	-	12.25%		July 1, 1989	-	13.25%
January 1, 1990	-	13.25%		July 1, 1990	-	14.75%
January 1, 1991	-	12.75%

c) Payment of additional interest pursuant to s.45(4)

i) The Claimant's position

Counsel submits that the intention of the parties to be governed by the interest provisions in the Expropriation Act is clearly reflected on the face of the Consent Order which expressly states that interest is to be paid "pursuant to s.45 of the Expropriation Act", and accordingly, the Board has no alternative other than to conclude that this agreement reflects the bargain made. Section 45 consists of four subsections. Subsection (4) states:

(4)

Where the amount of the payment under section 19(l) or (11) or otherwise is less than 90% of the compensation awarded, excluding interest and business loss, the board shall order the expropriating authority to pay additional interest, at an annual rate of 5%, on the amount of the difference, calculated from the date that the payment is made to the date of the determination of compensation. (Emphasis added)

Mr. Waqué further submits that since the advance payment was less than 90% of the compensation awarded, the Claimant is entitled to additional interest to be calculated from January 22, 1986, the date on which the first advance payment was agreed to have been made and not from the date on which the last advance payment was made.

ii) The Respondent's position

Counsel stated in his submission that the Respondent does not seek nor will it seek to set aside or alter any of the terms of the Consent Order as a result of a mutual, common, or unilateral misunderstanding or mistake. In his words:

What is relevant here today is the effect of the wording in the Consent Order when read in light of section 45 of the [Expropriation] Act.

Proceedings: February 26, 1991, p.98

The main point of Mr. Cosburn's submission relates to s.45(4) which he states imposes a "penalty" on the Respondent by virtue of entering into a settlement agreement. He acknowledges that while s.45(4) prescribes payment of interest he submits that "it is not interest" in the conventional sense and that when interest is to be calculated pursuant to the terms of the Consent Order it does not include interest as provided for under this subsection. While Mr. Cosburn concedes there is no reference to the word "penalty" in s.45(4), he submits that this subsection is punitive in nature; the fact that it is called interest does not make it interest; and that Claimant's counsel, in order to maximize the total compensation payable to his client, has sought "to explore little cracks and fissures in the statutory wall hoping to find a tunnel of gold at the end," if the Respondent is obligated to pay a 5% penalty as a cost of entering into a settlement, it is his view that such an imposition will discourage expropriating authorities to negotiate settlements. This is contrary to the intent of the Expropriation Act, an enactment intentionally designed to foster the settlement process.

Counsel referred to Minister of Highways for British Columbia v. Richland Estates Ltd., supra, (B.C.C.A.) where the court stated that one of the elements of "compensation" to be paid to make an owner "economically whole" is interest. Section 45(l) in his opinion provides for the payment of interest at competitive rates and that s.45(4) "is a penalty provision having no relation to interest in that sense whatsoever, except that ... unfortunately it is expressed in percentage terms relating to the interest that you award." Proceedings: February 26, 1991, p.105.

Counsel further submitted that if I find that additional interest is to be paid pursuant to s.45(4), such interest should only commence to run from the date on which the last advance payment was made.

iii) The Board's conclusion

Briefly stated, I find the Respondent's submission difficult to understand as the Consent Order and s.45(4) seem to me to be free from any ambiguity.

The Report on Expropriation (1971) by the Law Reform Commission of British Columbia (the "Commission") provided, in part, the foundation on which the new Expropriation Act for the Province of British Columbia was based. At p.176 of this report the Commission stated that interest should be awarded as compensation for the "temporary loss of capital". It recommended that interest be paid on that amount which remained owing if the compensation awarded exceeded the amount paid by an expropriating authority at the time of taking. The Commission further proposed at pp.176-7 that "to encourage expropriating authorities to make reasonable offers" an expropriated owner "should be entitled to additional interest at the rate of 5 per cent on the amount of the excess from the date of the offer to the date of the award." In the Commission's opinion, the additional interest "would only amount to a significant sum if the statutory offer was substantially less than the award."

The formal recommendation of the Commission, found at p.177, reads:

Where the amount awarded by the arbitration tribunal for market value exceeds the amount of the statutory offer, the owner shall be entitled to additional interest at the rate of 5 per cent on the amount of the excess from the date of the offer to the date of the award.

The similarity between the Commission's recommendation and the wording of s.45(4) is striking. It is interesting to note that the federal expropriation legislation contains a similar provision in that additional interest is to be paid to the extent that the amount of the offer is less than 90% of the compensation awarded.

In The Matter of a Reference as to the Validity of section 6 of the Farm Security Act, 1944, of the Province of Saskatchewan [1947] S.C.R. 394, 411 Rand J. defined interest as follows:

Interest is, in general terms, the return or consideration or compensation for the use or retention by one person of a sum of money, belonging to, in a colloquial sense, or owed to, another.

There is no wording in s.45(4) that derogates from this general definition of what constitutes interest. Section 45(4) expressly states when additional interest is to be paid and the method in which it is to be calculated. When s. 45 is read in its total context, there is little doubt that the Legislature intended that the purpose of s.45(4) is to encourage an expropriating authority to make a realistic advance payment. It must also be noted that the word "penalty" does not appear in s.45(4). There is no indication that the Legislature did not intend to use the word "interest" in s. 45 (4) in the phrase "... to pay additional interest ..." As such I do not accept the Respondent's submission that the Legislature did not intend the additional payment to be a payment of interest.

Further, s.45(4) does not state that interest shall be calculated from the date on which the last advance payment is made as provided for in s.19(11). If this were to be the case, an expropriating authority could defeat the spirit and intent of the Expropriation Act by making an inadequate advance payment at the time of taking and then make a further payment immediately prior to the date of hearing thus attempting to take maximum advantage of its economic superiority. While there is no evidence of that in this case, it has been known to occur and I mention it only to highlight what I believe to be the intent and meaning of s.45(4) which is to induce an expropriating authority to make a fair advance payment to an owner. The new Expropriation Act was designed to "level the playing field" by positioning an expropriated owner on an equal economic footing with the expropriating authority. The advance payment from the standpoint of s.19 gives to the owner a degree of economic parity so that negotiations, if necessary, will, as much as is statutorily possible, be between equals. To underscore the importance that an owner should be able to negotiate with some degree of economic strength, the Legislature, in my view, intentionally incorporated s.45(4) within the interest section of the Expropriation Act as a statutory ratchet to encourage an expropriating authority to come as close as possible to making a fair advance payment.

If an advance payment pursuant to s.19(l) is to have any significance as to date and amount, I could not conclude otherwise than that the first calculation of interest must run from the date of the first advance. Accordingly, I find that the Legislature intended that interest payable pursuant to s.45(4) is to be adjusted by using as a base the date on which the first advance payment was made, and when necessary, as a base, the dates on which any subsequent advance payments were made under s.19(11).

There are two sections of the Expropriation Act that permit either the Board when adjudicating upon a determination of compensation or the Chairman when acting as a reviewing officer to consider advance payments. They are respectively ss.44(5) and (11) (b) (ii). Firstly, in the event an expropriating authority elects to increase its advance payment or payments, and does so not later than 10 days before the hearing, the costs of the hearing to determine compensation may be reduced by the Board, if the award to the owner is 115% or less than the total advance payment. Section 44(5) states:

44.

(5)

Where the compensation awarded to an owner is 115% or less of the amount paid by the expropriating authority under section 19(l) and (11) or otherwise, the board has a discretion to award the owner all or part of his costs. (Emphasis added.)

Secondly, the Chairman when reviewing costs shall take into account the difference between an award and the advance payment or payments under ss.19(l) and (11), Section 19(11) states:

19.

(11)

The expropriating authority may, at any time before 10 days prior to the commencement of a hearing to determine compensation, increase the amount of its advance payment made under subsection (1).

It should be noted that the word "penalize" is found in s.46 which gives to the Board discretion to impose an interest penalty should the proceedings be unreasonably delayed by either an owner or an expropriating authority. Section 46 states, in part, as follows:

46.	... the board may penalize
	(a)	the owner, by depriving him, in whole or in part, of the interest to which he is entitled, or
	(b)	the expropriating authority, by increasing, by not more than double, the interest it is required to pay.

Therefore, in the absence of the word "penalty" in s.45(4) and its presence in s.46, I must conclude that if the Legislature had intended that the payment of additional interest was to be punitive in nature, it would have expressly said so.

Submissions were made at some length by counsel for the Claimant with respect to the integrity of settlements and the settlement process and by counsel for the Respondent to the effect that the settlement process would be adversely impacted if additional interest is deemed to be part of the settlement. if the parties wish the Board to approve a Consent Order containing the terms and conditions of a settlement, it is within their right to do so. Interest payable pursuant to s.45(4) is mandatory, not discretionary, when the advance payment is less than 90% of the award. It is not the Board's function to determine whether interest paid pursuant to this subsection is compensatory in the sense of making an owner economically whole or that such payment is in the nature of a penalty when the parties have agreed to the award. Such an opinion is completely irrelevant. The Legislature, and in the case of a Consent Order, the parties, have instructed the Board that additional interest shall be awarded when the prerequisites are fulfilled.

While the Consent Order refers to a settlement in the amount of $700,000, interest pursuant to s.45(4) is to be based only on that portion of the compensation awarded, excluding interest and business loss, to which the parties have agreed. Additional interest shall be calculated from the dates and based on the amounts set forth in paragraphs 2(a), (b) and (c). The total interest payable at an annual rate of 5% is calculated as follows:

Dates, Amounts and Balances on which Interest Payable

		Advance	Compensation	Balance
Jan. 22/86	Consent Order	$	$494,000	$
Jan. 22/86	Advance Payment	200,000		294,000
Oct. 21/87	Compensation		80,000	374,000
Feb. 10/88	Advance Payment	167,384		206,616
Sep. 30/89	Compensation		47,000	253,616
Aug. 21/90	Date of Award	253,616		-0-

Calculation of Simple Interest at 5%

(1)	Interest on $294,000 ($494,000 less the first advance payment of $200,000) is $40,27 per diem ($294,000 x .05/365 days). Interest payable for the period January 22, 1986 to October 20, 1987 is $25,654.52 (637 days x $40.27 per diem);
(2)	Interest on $374,000 ($294,000 plus disturbance damages of $80,000) is $51.23 per diem ($374,000 x 05/365 days). Interest payable for the period October 21, 1987 to February 9, 1988 is $5,737.76 (112 days x $51.23 per diem);
(3)	Interest on $206,616 ($374,000 less the net amount of the second advance, $167,384) is $28,30 per diem ($206,616 x .05/365 days). Interest payable for the period February 10, 1988 to September 29, 1989 is $16,895.10 (597 days x $28.30 per diem); and
(4)	Interest on $253,616 ($206,616 plus disturbance damages of $47,000) is $34.74 per diem ($253,616 x .05/365 days). Interest payable for the period September 30, 1989 to date of award, August 21, 1990 is $11,325.24 (326 days x $34.74 per diem).

The total additional interest payable pursuant to s.45(4) from January 22, 1986 up to and including the date of the award, August 21, 1990, is $59,612.62.

5. COSTS

The Claimant shall have its reasonable costs for preparing and appearing on this application save and except travel disbursements. The matter of costs in these proceedings and the application for determination of compensation originally scheduled for August 20, 1990 were resolved on April 23, 1991.

THEREFORE IT IS ORDERED THAT

1.	A certificate shall be issued to the Claimant pursuant to the Board's Consent Order dated August 21, 1990 for
	(a)	an amount to be calculated by the parties for interest pursuant to s.45(l) to be compounded annually and based on the amounts and dates as set forth in the Consent Order with adjustments to take into account monies paid by the Respondent either to or on behalf of the Claimant. The rates of interest shall be those set out under heading 4(b) of this award. If the parties are unable to agree on the calculation of interest provided for herein, they shall be at liberty to apply to the Board for settlement of this amount; and
	(b)	additional interest of $59,612.62 pursuant to s.45(4).

EXPROPRIATION COMPENSATION BOARD

John H. Heinrich, Q.C.

1. Where reference is made in this decision to a section without a statutory reference that section is found in the Expropriation Act.