December 1, 1989, E.C.B. 7/88/011 (42 L.C.R. 279)

ORDER

1. INTRODUCTION

This is an application by the Claimants for an Order fixing the amount of the legal costs to be paid by the Respondent pursuant to Expropriation Compensation Board Order No. 7/88/003, dated March 10, 1989, [reported as Nygard et al. v. District of Surrey (1989), 41 L.C.R. 122] which ordered, inter alia, that the Respondent pay to the Claimants

Their actual reasonable legal, appraisal and other costs of and incidental to the application and hearing before the Board in such amount as may be agreed upon and failing such agreement in such amount as may, upon application to the Board, subsequently be taxed and allowed by the Board.

The application was made pursuant to sections 44(3), (7) and (11) of the Expropriation Act, S.B.C. 1987, c.23 ("the Act").

44.	(3)	Subject to subsections ... (6), a person whose interest or estate in land is expropriated is entitled to be paid costs necessarily incurred by him for the purpose of asserting his claim for compensation or damages
44.	(7)	The costs payable under subsection (3), [or] (4), ... shall be
		(a)	the actual reasonable legal, appraisal and other costs, or
44.	(11)	In a determination of costs under subsection . . . (10), the following considerations shall 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 19(l) ...;
		(c)	the manner in which the case was prepared and conducted

2. BACKGROUND

The expropriated land was a 5.26 acre parcel located in the District of Surrey. At the time of taking, it was not developed apart from a small residential dwelling. The Board found, after a three day hearing, that the highest and best use of the land was for intensive townhouse development and awarded compensation in the amount of $325,000. Prior to the hearing, the Respondent had paid $212,040 to the Claimants. The facts are fully set out in the Board's reported decision.

Counsel submitted an itemized eight page account setting out the number of hours recorded and the nature of the legal services provided over a two-year period. The account, including uncontested disbursements of $1,287.62, totalled $33,630.62. Accordingly, the taxation was confined to legal fees in the amount of $32,343.

The total time invested by counsel, including the hearing, was 173.6 hours. Now in his 14th year of practice, he billed his time at $130 per hour. For the purposes of the compensation hearing the hourly rate was equivalent to an acceptable per diem of $750. Counsel was assisted in the preparation of the Claimants' case by Mr. Michael Thornton who was called to the Bar approximately six weeks before the hearing. While articling, he had logged 45 hours on the file. As a newly called lawyer, he remained active on the case and logged a further 70 hours including attendance at the hearing. The hourly rate charged by counsel's law firm for Mr. Thornton as a law student and as a recently called member of the Bar was $85.

3. ISSUES

The issues arising on this taxation were to determine whether or not the legal fees charged were reasonable and to tax and award the amount to be paid.

4. NATURE OF COSTS IN EXPROPRIATION PROCEEDINGS

Prior to the passage of modern expropriation codes, an expropriated owner was treated unfairly with respect to legal costs and out-of-pocket expenses. As was stated by E. C. E. Todd in his text, The Law of Expropriation and Compensation in Canada, (Carswell, 1976) at p.382:

A very inequitable feature of the old law ... is the financial burden placed on the expropriated owner in the matter of legal and other expenses incurred as a result of the expropriation.

The new expropriation codes considerably alter this situation and ensure, on a fairly generous scale, that the prudent and reasonable owner is not financially jeopardized as a result of exercising his statutory rights at every stage of the expropriation process.

Law Reform Commissions have drawn a distinction between ordinary litigation and expropriation proceedings. Historically, they have recommended reimbursement for reasonable legal, appraisal and other costs that owners have incurred to establish their right to fair compensation. This distinction was considered in the Report of the Ontario Law Reform Commission (1967), The Basis for Compensation on Expropriation, at p.39:

Approaching the costs problem from the indemnity aspect, there is no reason why the claimant should not be fully compensated for his legal and appraisal expenses. It is not the same situation that exists where two private litigants are engaging in a contest before the courts and where costs, in all likelihood, will be paid by the loser to the winner. Here, the state has intervened and injured one of its subjects in the enjoyment of his property. Since the purpose of the compensation is to make the expropriatee economically whole, he should be fully reimbursed for the legal and appraisal costs incurred ... he should be entitled to these costs whether or not his claim went to arbitration. Merely because he settles is no reason why he should be out of pocket.

Certainly, in expropriation cases, claimants should not be placed in a position where they are afraid to consult the legal profession because they are apprehensive about the cost. The same applies to seeking the advice of an appraiser. People should be placed in a position which gives them freedom of action in seeking advice. In this way, they will be more likely to feel fairly treated and that the expropriating authority has not taken advantage of them.

The Report on Expropriation published by the Law Reform Commission of British Columbia in 1971 stated at pp.152 and 153:

Expropriation proceedings cannot be regarded in the same light as litigation between two private parties, where the loser will usually be responsible for the costs.

* * * * *

We stress, once again, that the expropriated owner is not in the position of an ordinary litigant. It may be that entitling him to costs as we propose will tend in some cases to prolong negotiation. In other cases, however, if he receives good legal and appraisal advice, the proceedings may well be shortened. In any event, fairness to the owner in this respect heavily outweighs any disadvantages that may result.

The British Columbia Expropriation Act is a modern expropriation code. In matters of costs, the Act specifically provides that in most cases an expropriating authority shall pay the "actual reasonable legal costs" necessarily incurred by an owner "asserting" a claim for compensation.

The amount of the costs awarded to an owner, however, can be a contentious issue as pointed out in an Ontario study by R. B. Robinson, Q.C. entitled Report on the Expropriations Act (1974). The author was a well-known and highly respected practitioner in the area of expropriation law. In his report he expressed concern over the impact of costs.

These provisions have been a golden goose, laying eggs, but eggs of gold. Splendidly generous to landowners, they have caused more complaint from expropriating authorities as guardians of the public purse than any other provision of the Act. They have contributed to the unhealthy philosophy "buy at any price rather than expropriate" because with the costs of expropriation, the price was likely to be higher still.

Notwithstanding those concerns raised by Mr. Robinson, consideration must be given to owners who may, in order to exercise their statutory rights to fair compensation, be compelled to retain a level of expertise equivalent to that which is available to and often employed by an authority.

Although it is clear that an expropriated owner is entitled to be properly and fairly compensated in the matter of costs, caution must be exercised. As was stated by the taxing officer in Lenjo Enterprises Ltd. et al v. Municipality of Metropolitan Toronto (No. 3) (1977), 12 L.C.R. 13, 14:

While I have always tried to be careful not to suggest that solicitors have done unnecessary work or have done necessary work in a time-consuming manner ... I have been driven, through a series of these taxations, to the conclusion that, with the pot of gold at the end of the rainbow, in the form of s.33(l) of the (Ontario] Expropriations Act, glistening in the distance, many solicitors acting for claimants seem to have conducted themselves in an expansive manner such as to suggest an acute awareness that their clients will not be required to pay their bills.

5. JURISDICTION

In British Columbia the Chairman of the Expropriation Compensation Board is designated under s.44(10) of the Act as the taxing officer.

44.

(10)

Where the board determines the amount of compensation or damages to which a person is entitled, the amount of costs shall be determined by the chairman.

However, this jurisdiction is limited to taxing costs as between the expropriating authority and the expropriated owner. It does not extend to the taxation of costs as between a lawyer and a client which, when necessary, is governed by the Rules of Court (See Ghitter v. City of Calgary (1985), 33 L.C.R. 60.)

6. OBJECT OF TAXATION

The initial objective at a taxation is to determine if the nature of the work done was necessary, and if so, then determine whether the amount claimed for that work was reasonable within the context of the statutory direction provided for in ss.44(7) and (11). As was stated by the court in Nissen v. City of Calgary (No. 3) (1983), 28 L.C.R. 321 (Alta. C.A.) at pp. 324-5 after reviewing the criteria to be applied when taxing fees in the absence of a tariff:

There is but one unique consideration that must be brought to bear in the taxation of accounts in such circumstances. The client, because he knows he never need pay the bill, might not act reasonably.

As well, a solicitor who knows that a client will not be responsible for the bill (or a major part of it) may not submit a reasonable account to the expropriating authority.

In Ontario and Alberta, the reasonable costs actually incurred for the purpose of determining compensation are recoverable from an authority. However, the practice in Ontario is that such costs must be directly related to a compensation hearing, otherwise they are disallowed. In Shiner v. Municipality of Metropolitan Toronto (No. 2) (1972), 3 L.C.R. 101, 102-3 the Taxing Officer stated that the meaning of the words in s.34(l) of the Ontario Expropriations Act "for the purpose of determining the compensation payable" did not include all

legal costs reasonably and actually incurred because of the expropriation of his property, [if so] it would have been a straight forward and obvious matter to have said so. Some such words as "his full legal costs of or in respect of the expropriation proceedings" or "his solicitor and client costs occasioned by the expropriation of his property" would have accomplished this end. I am driven to the conclusion by the use of the words "for the purpose of determining the compensation payable" that the Legislature did not, and did not intend to, allow full indemnity to the claimant for all his reasonable legal costs resulting from the expropriation. I think those words mean that the claimant is to receive payment for all his reasonable legal costs actually incurred for the services rendered in connection with the procedures taken to determine the compensation payable.

In Alberta, s.39 of the Expropriation Act, R.S.A. 1980, c.E-16 reads, in part, as follows:

39.

(1)

The reasonable legal ... costs actually incurred by the owner for the purpose of determining the compensation payable shall be paid by the expropriating authority ...

The Alberta Land Compensation Board has adopted a more liberal interpretation in that all costs are recoverable if incurred as a direct result of the expropriation; it is not required that such costs be directly tied to the compensation hearing.

In British Columbia s.44(3) of the Act provides that an owner

is entitled to be paid costs necessarily incurred by him for the purpose of asserting his claim for compensation or damages. [Emphasis added.]

As to whether the costs claimed were necessarily incurred will depend on the facts of each case and will be reviewed in the context of s.44(3).

Owners are not to be placed in a position where they are reluctant to seek professional advice because of cost considerations; they must have the economic freedom to seek the opinion of an expert and the benefit of counsel particularly when an expropriating authority has unilaterally intervened in the enjoyment of their property.

7. RULES OF COURT

The Respondent argued that the Rules of Court (Appendix B - Party and Party Tariff of Costs) as set out in the Supreme Court Act, R.S.B.C. 1979, c.397 govern the taxation of legal fees awarded by an Order of the Expropriation Compensation Board. With respect, I disagree and for the following reasons:

Firstly: although costs payable by an expropriating authority to an expropriated owner are in a general sense party-and-party costs in that they are costs payable by one party to another arising out of the same legal proceeding, the concept of "actual reasonable costs" which have been "necessarily incurred" cannot be measurably related to the tariff of party-and-party costs under the Rules of Court. If the legislature had intended these Rules to apply at a taxation, it would have expressly said so. [See Salvadore et al v. Minister of Highways for Ontario (1969), 1 L.C.R. 172, 173 and Arsco Investments Ltd. v. Municipality of Metropolitan Toronto (1972), 2 L.C.R. 312, 317 where the taxing officer held that the Supreme Court Rules of Practice that regulate the taxation of party-and-party costs were not applicable under the Ontario Expropriations Act.]

Secondly: the legislature was cognizant of the existence of tariffs of costs by giving the Lieutenant Governor in Council the power to prescribe a tariff of costs under s.44(7)(b).

44.	(7)	The costs payable under subsection (3), [or] (4), ... shall be
		(a)	the actual reasonable legal, appraisal and other costs, or
		(b)	where the Lieutenant Governor in Council prescribes a tariff of costs, the amounts prescribed in the tariff and not the costs referred to in paragraph (a).

Although the Lieutenant Governor in Council has not prescribed a tariff of costs, it is clear that the legislature included this section in the Act to override s.44(7)(a) should it feel obliged to do so. In the absence of a tariff the owner is entitled to "actual reasonable costs". Moreover, s.44(11) sets out those considerations which "shall be taken into account" by the Chairman as taxing officer. These statutory provisions have effectively removed from under the Rules of Court the taxation of costs as between an authority and an owner in expropriation proceedings.

8. MEANING OF THE WORD "REASONABLE"

Section 44(7) states that costs payable shall be "the actual reasonable legal ... costs". Black's Law Dictionary, 5th ed. (1979) defines "reasonable" in the following terms:

Fair, proper, just, moderate, suitable under the circumstances. Fit and appropriate to the end in view. Having the faculty of reason; rational; governed by reason; under the influence of reason; agreeable to reason ... Not immoderate or excessive, being synonymous with rational, honest, equitable, fair, suitable, moderate, tolerable.

The word "reasonable" must also be read in context with the statutory direction provided in s.44(11).

44.	(11)	In a determination of costs under subsection . . . (10), the following considerations shall 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 19(l) ...;
		(c)	the manner in which the case was prepared and conducted.

In addition to the above, there are other matters which may well be considered in the determination of costs, In the absence of a tariff, consideration of those decisions dealing with the taxation of lawyers' accounts is helpful since in both situations the concept of "reasonableness" is important. In Re Royal Bank v. Mars (1931), 25 S.L.R. 225, 231 the Court stated:

Where there is no tariff of costs which can be applied to regulate charges for business done by a solicitor, and where there is no specific contract between the solicitor and his client, the general custom and practice of solicitors is to be the guide, if such custom or practice exists; if there is no custom, the value of the services rendered is to be estimated on a quantum meruit: Widdifield on Costs, 2nd ed., pp.197 et seq;

(Also see Re Solicitor Ex. P. Day and Henwood (1908), 8 W.L.R. 536.) In Murphy v. Corry (1906), 7 0.W.R. 363 it was stated by the Master that the following circumstances should be considered in arriving at a proper amount.

... the amount and character of the services rendered, the labour, time, and trouble involved, the character and importance of the litigation in which the services were rendered, the amount of money or the value of the property to be affected, the professional skill and experience called for, the character and standing in their profession of ... [counsel], the result secured, and the ability of the client to pay.

In Lynch-Staunton v. Somerville (1918), 46 D.L.R. 748 (Ont. C.A.) Riddell J.A. stated at pp.753 and 754:

Common sense, I venture to think, indicates that the amount of remuneration a lawyer should receive depends to some extent on the magnitude of the interests concerned, and more upon the skill which he manifests in his client's behalf than upon the number of interviews he may have or the time spent. ... It is infinitely better to state in reasonable detail what the lawyer has done and what he has accomplished, and from the whole course of the transaction determine the fee to be allowed.

I entirely agree in what has been said in Re Solicitor, 12 O.W.N. at p.192: "Where a professional man is called upon to advise upon a complicated situation and to take charge of investigations and negotiations, his fee can be better estimated by the result attained and the care and skill shewn in what was done than by any summation of items each attached to an individual move in the game played with living persons;"

And in the same decision Kelly J.A. stated at pp.754 and 755:

I readily subscribe to what was said by Middleton J., in Re Solicitors (1911), 2 0.W.N. 596, 18 O.W.R. 366, that many cases arise in which there are a series of consultations and interviews in the course of negotiation, and it is quite impossible to divide and allocate the sum proper to be paid between the different "items" of work done; and there are other cases where the work in its nature is an "entire" thing incapable of intelligent subdivision; and again: "When a solicitor is employed to adjust a matter of difficulty, nothing more injurious to the client could be suggested than that the solicitor's remuneration must depend upon the length of time taken and the number of interviews had. One may grasp a situation with great rapidity, and his skill and experience may lead to its satisfactory solution in a way that after the event appears easy. Another, lacking the necessary skill and experience, may plod away at great length and in the end fail to reach as satisfactory a result, but an itemized bill would give him greater remuneration."

The reasoning found within the above decisions has been adopted by those taxing legal accounts in expropriation proceedings. In Salvadore et al. v. Minister Ontario, supra, at p. 174 the Taxing Officer stated:

The quantum of costs, and particularly of fees, must be reasonable, having regard to the amount of the award, the number and complexity of the issues involved, the time expended by the claimants' solicitors and expert advisers, the degree of skill and competence demonstrated by them and the degree of success realized in the proceedings. In short, the taxation of costs awarded under s.33(l) of the Act resolves itself into a taxation on a quantum meruit and I apprehend that to be precisely what the framers of the [Ontario] Expropriations Act, 1968-69, had in mind when they included s.33(l). Such a taxation almost by definition, must be based on reasonableness, not on tariffs.

In Amdue Holdings Ltd. et al v. City of Calgary (No. 2) (1976), 11 L.C.R. 370 the Alberta Land Compensation Board at  pp.372-3 suggested that the following general principles be applied at a taxation.

1.	Full costs of and incidental to an application properly made pursuant to the Act by the owner should be paid by the expropriating authority. The costs should however reflect such reasonable, economical and straightforward preparation and presentation as is necessary to properly present the owner's case to the Board.
2.	The owner should not be allowed the cost of unnecessary work or other expenses or costs incurred through over-caution or over preparation.
3.	The owner should not be allowed costs which are the result of misconduct, omission or neglect by the owner.

The criteria for determining reasonableness has been established by the common law (Murphy v. Corry, supra). To a large degree that law has been codified by the Justice Reform Statutes Amendment Act, 1989 S.B.C. 1989, c.30 which will amend the Legal Profession Act S.B.C. 1987, c.25. When proclaimed, the following section will be added:

71.1	(2)	At a review of a bill for fees, expenses and disbursements, the registrar shall consider all of the circumstances, including
		(a)	the complexity, difficulty or the novelty of the issues involved,
		(b)	the skill, specialized knowledge and responsibility required of the member,
		(c)	the member's character and standing in the profession,
		(d)	the amount involved,
		(e)	the time reasonably expended,
		(f)	* * * * *
		(g)	the importance of the matter to the client whose bill is being assessed, and the result obtained.

Although a review of legal fees under the Legal Profession Act is conducted by a registrar under the Rules of Court, those considerations set out in s.71.1(2) may also serve as appropriate guidelines in addition to s.44(11) of the Act at a hearing to determine costs in expropriation proceedings.

9. CONTENTS OF A BILL OF COSTS

A properly drawn bill of costs is essential in order to conduct a meaningful taxation. In the Amdue decision (supra), the Alberta board stated at p.373 that bills of costs rendered in expropriation proceedings should adequately describe the work done and in particular

1.	set out the number of hours spent in preparation and presentation of the matter to the Board and the rate or rates charged therefor;
2.	set out in detail costs incurred for reports of appraisers and other experts with verification of such costs;
3.	set out the costs incurred or charges made for attendance by expert and other witnesses at the hearing before the Board;
4.	itemize correspondence, telephone calls and attendances in connection with the matter and the charges made therefor;
5.	itemize and verify other disbursements made in connection with the matter.

In Re Harper's Wholesale Ltd. et al. and City of Hamilton (1978), 15 L.C.R. 9, 10 (Ont. S.C.) the Court was of the view that legal accounts in expropriation proceedings should be well documented and not based on estimates for the following reason:

In my view, this is an unsatisfactory way to substantiate a claim for fees in a case in which the solicitors realized from the outset that their account would be paid by someone other than their client, and in this case by a public body. In such a case, in my view, there is a responsibility on the solicitors to keep sufficient records that they can demonstrate the fairness of the account which they ultimately present.

10. THE LEGAL FEES

At the compensation hearing it was evident that the Claimants' case had been carefully and thoroughly prepared and for the most part, it was effectively presented.

The issues placed before the Board for its determination were highest and best use and market value of the expropriated land, disturbance damages, interest and costs. The determination of highest and best use presented difficult and unique problems, though not overly complex, with respect to re- zoning and density. Each required a thorough understanding of the appraisal and engineering reports and the Respondent's Official Community Plan. In addition, there were evidentiary matters relating to both admissibility and weight which became significant issues at the hearing. These issues were competently handled by counsel who achieved considerable success. The award was approximately double the amount paid after deducting the Respondent's allocation for interest and costs.

Counsel for the Respondent contended that junior counsel need not have been engaged for the compensation hearing. I would agree that the cost to an authority of two counsel would normally invite review. According to Claimants' counsel, Mr. Thornton conducted extensive interviews with two key witnesses. One witness gave evidence of the particulars and circumstances surrounding the Respondent's purchase of a parcel of land contiguous to the expropriated land. The second witness testified on the design and layout of a proposed townhouse development. My observation at the hearing was that Mr. Thornton made a useful contribution and the cost of his engagement was reasonable in this instance and cannot be categorized as an unnecessary expense.

Notwithstanding the degree of success achieved, I am of the view that the total number of hours devoted by counsel on behalf of the Claimants was more than necessary. There were also specific items in the account which required adjustment. Accordingly, the legal fees have been reduced and for the following reasons:

Firstly: travel time, which was billed out at full rates, should be significantly less. The hourly rate for this item has been reduced by 50 per cent by deducting five hours each from the total hours docketed by both senior and junior counsel;

Secondly: the hourly rate of $85 for a law student is too high. Counsel stated that his law student, though required by law to complete articles in British Columbia, had been called as a solicitor in Britain. It is acknowledged that many law students bring to their profession a wide and varied background; however, the rules laid down by the Law Society of our Province have been promulgated for good reason. Accordingly, I fix the rate at $55 per hour as being appropriate for this student's time.

Thirdly: there were legal services rendered in connection with an estate of a deceased person who held a mortgage on the Claimants' land. In order to transfer the expropriated land to the Respondent on the terms and conditions to which the parties had agreed, it became necessary for counsel to be involved in the partial administration of the mortgagee's estate. The two hours expended on this ancillary service was not properly chargeable to the Respondent;

Fourthly: counsel for the Respondent did not object to the hourly rate of $130 but did suggest that the amount of time billed was excessive. It was fairly stated by counsel that he was inexperienced in expropriation matters hence some time was needed to review and research the relevant law and procedure. Legal fees should be reduced to reflect this consideration. (See Kolbrich et al v. Ministry of Housing (1981), 23 L.C.R. 1, 4.) It would also be fair to state that there was some overlapping of time spent as between counsel and his junior solicitor resulting in a duplication of effort. Moreover, either the total of their combined hours represent "over-caution or over preparation" as dealt with in Amdue, supra, or they "have done necessary work in a time-consuming manner" as stated in Lenjo, supra,. [See Nissen v. City of Calgary (No. 3) (1980), 20 L.C.R. 60, 65-6 (Alta. L.C.B.) for a review of hours allowed, level of experience of counsel and legal costs paid by authorities.] A detailed examination of the account did assist in measuring reasonableness; however, the number of hours docketed and the hourly rate charged are not the sole determinants in deciding whether an account for legal fees is reasonable. City of Calgary v. Spolentini et al. (No. 2) (1985), 32 L.C.R. 277, 281. The account must be considered as a whole. As was stated in Nissen, supra, at p.63:

... such examination does not absolve the Board from consideration of the account as a whole to determine the reasonableness or otherwise thereof.

In Kerr v. Minister of Transportation (No. 2) (1980), 20 L.C.R. 106, 112 (Alta. L.C.B.) the board after considering the same point stated:

In the Board's experience in taxation of costs in other expropriation cases where the issues were similar as to complexity and the duration of the hearing was the same an expenditure of time in the range of 70 to 80 hours is indicated. The Board recognizes that comparisons between different expropriation cases must be made with care-- no two such cases are identical nor are the legal counsel who participate therein. Nevertheless, where the Board has heard such cases it is in the position to assess in an informed manner the issues dealt with and the efficacy and skill with which they are presented and to fairly make an informed comparison with respect thereto.

And fifthly: an examination of the account reflected that the Claimants had demanded more of their solicitors' time than was necessary in the prosecution of their claim. The extra time is something solicitors are entitled to be paid for, but by the Claimants, not the Respondent. The taxing officer's function is to assess that amount the authority must pay an owner without regard to what amount an owner may be obliged to pay by contract, or otherwise, to a professional. (See Stanton v. Board of Education for Borough of Scarborough (No. 3) (1983), 26 L.C.R. 292, 295 and Town of Grand Centre v. Dalbar Feeders Ltd. et al (1984), 31 L.C.R. 255, 271.)

After weighing and considering all of the above factors I am of the opinion that the legal fees should be reduced overall by 20 per cent after first deducting $2,685 to reflect adjustments for travel time, hourly rates, and services related to the land taken but unrelated to the expropriation. Accordingly, the legal fees have been taxed and allowed at $23,726. A summary of the calculations are set out below.

SUMMARY OF REVISIONS TO LEGAL ACCOUNT

1.	Legal account presented at:	$32,343
2.	Deduction of $2,685 after making adjustments for travel time, hourly rates and an unrelated item	(2,685) $29,658
3.	Overall Reduction By 20% ($29,658 x .20)	(5,932)
4.	Taxed and allowed at	$23,726

11. COSTS OF TAXING COSTS

As was stated by E.C.E. Todd in The Law of Expropriation and Compensation in Canada, supra, at p.393

Costs are an integral part of the award of compensation and, therefore, the costs incurred in taxing costs may be recoverable.

In Shiner v. Municipality of Metropolitan Toronto (No. 2), supra, the taxing officer stated:

But I think the cost of the legal services rendered in connection with the normal procedure for the taxation of the costs of the arbitration are payable by the authority.

In Madsen et al v. Municipality of Metropolitan Toronto (1970), 1 L.C.R. 27, 39 (Ont. C.A.) the Court held that costs "arising out of this additional hearing" were costs of the taxation in the same expropriation proceedings and shall be governed by the Ontario Expropriations Act.

Accordingly, we remit the matter before us to the arbitrator for the sole purpose of the fixing by him of the reasonable legal, appraisal and other costs mentioned in the award.

The question of any costs arising out of this additional hearing will, of course, be disposed of and fixed by him under that section of the Act.

(See Eddy v. Ministry of Transportation & Communications (No.3) (1976), 10 L.C.R. 92.)

At the conclusion of this application counsel spoke to the matter of costs relating to preparation for and attendance at this hearing. Counsel for the Claimants stated that his costs were $1270 based on four hours of preparation at $130 per hour and a counsel fee of $750 for a one-day hearing including travel time. The hearing was approximately three hours in length. Counsel for the Respondent did not object to the hourly rate but repeated his concern about the rate charged for travel time. This latter point has been dealt with above. After considering all the factors raised, I find that the Claimants are entitled to the costs of this application which have been taxed and allowed at $1,170.

THEREFORE IT IS ORDERED THAT

(1)	Pursuant to s.44 of the Expropriation Act the Claimants' reasonable legal costs are hereby taxed, fixed and allowed at $23,726 and shall be paid forthwith by the Respondent to the Claimants. Any monies paid by the Respondent in the nature of an advance payment of legal costs shall be deducted from, the amount taxed.
(2)	The Claimants' costs of and incidental to the application herein are hereby taxed, fixed and allowed at $1,170 and shall be paid concurrently with (1) above.

EXPROPRIATION COMPENSATION BOARD

John H. Heinrich, Q.C.