March 3, 2003, ECB Control No.: 01/98/233

REASONS FOR DECISION

INTRODUCTION

[1]   The claimant, Leslie Ann Williams, owns a property that fronts on Mariners Way, Mayne Island. It is described as Lot 9, Section 6, Mayne Island, Cowichan District, Plan 23006. On June 9, 1994, an agent of the respondent, British Columbia Hydro & Power Authority, entered onto the claimant's property and cut down 12 trees: eleven big leaf maples (Acer macrophyllum) and one red alder (Alnus oregano). The respondent's agent was High Tree Services Ltd. and the respondent acknowledges that High Tree Services Ltd. was acting under instructions from British Columbia Hydro & Power Authority.

[2]   The jurisdiction of the Expropriation Compensation Board is derived from section 20 of the Hydro and Power Authority Act, R.S.B.C. 1996, c. 212 which provides that:

20 (1) The authority may, by itself, or by its engineers, surveyors, agents, contractors, subcontractors or employees, for any purpose relating to the use, construction, maintenance, safeguarding or repair of its plants or projected plants, or for better access to them and without the consent of the owner, enter any land and …

(b) cut down any trees that, in its opinion, might, in falling or otherwise, endanger the conductors, wires or equipment or other plant of the authority, or that may obstruct the running of survey lines, and …

(2) Despite anything in this Act, if a claim is made against the authority for damage to crops, gardens, shrubs, trees or other growing things, or other damage caused by or incidental to the exercise of powers conferred by this section, if the amount of compensation for damage is not agreed on, compensation must be determined by the Expropriation Compensation Board established under the Expropriation Act.

[3]   There is no issue that the respondent had statutory authority for entering onto Ms. Williams' property and cutting down trees that in its opinion endangered its conductors or wires. The only issue is the amount of compensation or damages that is owed to Ms. Williams for the loss of these 12 trees. A secondary issue is whether she is also entitled to interest and costs under the Expropriation Act, R.S.B.C. 1996, c. 125 (the "Act") when her claim is brought under section 20 of the Hydro and Power Authority Act.

2.   BACKGROUND

[4]   The subject property is a secluded rural property with wooded areas that are covered in bush and trees. There are two cabins and a trailer on the property that are located some distance from Mariners Way and down a steep bank from the road. There is a notional driveway down this bank but it is a very rough track usable only by a 4 by 4 vehicle. Ms. Williams presently resides on the property about eight months a year (during the spring, summer and early fall) but she intends to build another residence and move onto the subject property on a permanent basis on her retirement.

[5]   The trees that were removed were in a 10 foot strip of Ms. Williams' property near the hydro line, running some 90 feet alongside Mariners Way. High Tree Services Ltd. did not advise Ms. Williams that they were going to remove the trees and the evidence was that they did not realize that they were on private property when they cut these trees. Ms. Williams reported the big leaf maple tree stumps to have the following diameters: 2.5 inches, 3.0 inches, 4.5 inches, 4.5 inches, 4.5 inches, 6.0 inches 8.5 inches, 9.0 inches, 9.5 inches, 10.0 inches and 10.5 inches. The one red alder stump measured 14 inches. The respondent did not contest the number of trees that had been cut or their size.

[6]   The cut trees were indigenous trees that form part of the natural wooded area near Mariners Way. The trees that were removed were those closest to Mariners Way and the power line. There is still a wooded area on this southern perimeter of Ms. Williams' property with a number of saplings and trees of various ages and sizes.

[7]   The trees had not been replaced at the time of the hearing in the summer of 2002, some eight years after they had been removed.

3.   VALUATION

3.1   Expert evidence

[8]   The claimant relied on a valuation report of the 12 trees that was prepared by Michael Gye dated August 20, 1998. This valuation had been prepared for the respondent and provided to the claimant. The respondent applied at the beginning of the hearing that Mr. Gye's report be excluded in part on the grounds that Mr. Gye was unavailable for cross-examination. The introduction of the report as an exhibit was allowed despite Mr. Gye being unavailable. Mr. Gye is a Registered Consulting Arborist with the American Society of Consulting Arborists as well as a Certified Arborist with the International Society of Arboriculture. He began working in tree maintenance in 1961 and has been in private practice as a Consulting Arborist with Mt. View Tree Service Ltd since 1981. He had prepared almost 20 tree appraisal reports since 1988 for insurance losses and trespass cases and testified on tree appraisal issues in three Supreme Court cases.

[9]   British Columbia Power and Hydro Authority relied on a valuation report prepared by Brian Fisher dated May 28, 2002. Mr. Fisher is a Certified Arborist with the International Society of Arboriculture. He was President of the Pacific North West Chapter of the International Society of Arboriculture from 1992-1994 and he has also been a member of the Certified Arborist Test Committee from 1990-1995 and from 1998-2001. He started working in tree maintenance in 1977. He also has been an employee of the respondent British Columbia Hydro & Power Authority since 1991 and at the time of the hearing held the job title of Strategic Coordinator for Vegetation Maintenance. Mr. Fisher said that he had done about one tree evaluation a year over the previous 10 years. Mr. Fisher was called as a witness.

[10]   Mr. Gye attended the site in August 1998. He states that the purpose of his report "is to help B.C. Hydro and Ms. Leslie Williams resolve their dispute". He identified the 12 tree stumps and was able to measure their diameter. Mr. Gye judged the condition of the trees that had been removed in 1994 by the condition of the existing trees in the woodland area that remained in 1998. Mr. Gye described the existing trees as "young trees in good vigour growing very close together as is often found in unmanaged woodland". When the trees are in leaf they helped to screen out the interior of the lot from Mariners Way and Mr. Gye characterized them as forming a "natural hedge". Ms. Williams' main complaint was to do with loss of privacy in the summer. Mr. Gye attached a photograph taken from the interior of the lot towards the road when the trees were in leaf and stated that judging from the position of the stumps, that most of the gaps that were apparent in 1998 would have been filled by the trees that had been cut.

[11]   Mr. Gye stated that trees can be valued in several ways and no single method was satisfactory for all situations. He went on to say that in his opinion the most appropriate method in this case was to use the cost of a 4-inch calliper Grade A nursery tree as the basis for compensation. This size of tree is the largest that is available, although it would not be as large as many of the ones that were cut down. He stated that in the Pacific North West Region the basic value for replacement of broadleaf and deciduous trees has been established at $45 per square inch of trunk cross section. This was the retail price of the largest commonly available trees as determined by the Pacific North West Chapter of the International Society of Arboriculture by polling nurseries throughout the north-west region. At $45 per square inch, a 4-inch calliper tree would cost $566 or $6,792 for 12 trees. He concluded that in his opinion fair and reasonable compensation for the 12 cut trees was $6,792.

[12]   Mr. Fisher attended the subject property in March 2002. His approach to the valuation was to divide the 12 trees into two groups. He valued the six smallest trees (all big leaf maples) with diameters between 2.5 and 6.0 inches at the replacement cost for 2-3 year old trees in a five gallon pot with 1 centimetre trunks. The cost ranged between $14.50 and $50 for each tree and he used a value of $40 a tree times a factor of 2.5 to take into account the costs of transporting and planting or $600 for six trees. Mr. Fisher stated that big leaf maples grow 1 to 3 metres a year and should be planted well away from the power lines so that they do not grow into the lines. He valued the six largest trees according to their individual trunk sizes. He used the same valuation for broad leaf trees that Mr. Gye used of $45 per square inch and applied this to the actual size of the six largest trees that were cut. He stated that this valuation of $45 per square inch included transportation and planting. This gave him a value of $15,740 for the five big leaf maples and $6,925 for the single 14 inch trunk red alder. He added the replacement cost of $600 for the six small big leaf maples to the $15,740 for the five large trees for a total of $16,340 for the big leaf maple trees. This total replacement cost taking the actual trunk diameter of the larger trees into consideration was then reduced by applying various percentage factors for the particular tree species, the condition of the trees and the location of the trees. The species rating is set out by the Pacific North West Chapter of the International Society of Arboriculture, (60% for big leaf maples and 40% for red alders). Mr. Fisher estimated the condition rating for the trees at 75% and a three factored location rating for the trees at 40%. After applying these percentage factors his final valuation for all 12 trees was $3,780.

3.2   Analysis

[13]   While it is unfortunate that High Tree Services was mistaken about the location of the lot line, under section 20 of the Hydro and Power Authority Act it is not legally relevant. The respondent had the right to enter onto the property and remove the trees. If High Tree Services had recognized the correct location of the property line, Ms. Williams may have been advised before the trees were cut, but she could not have prevented them being removed. The issue for determination is the amount of compensation Ms. Williams should be awarded for the loss of these trees.

[14]   Both Mr. Gye and Mr. Fisher have used the same unit rate of $45 per square inch of trunk cross section for broad leaf trees that has been established by the Pacific North West Chapter. This is a cost unit rate and I accept Mr. Fisher's evidence that it includes transportation and planting. However, Mr. Gye's final valuation at $6,792 is almost twice Mr. Fisher's valuation of $3,780. There are two reasons for this. First Mr Gye assumed the replacement costs for 12 average size trees while Mr. Fisher assumed the replacement costs for the six larger trees to be for ones that were the actual size but the six smaller trees to be for young replacement trees in a five gallon pot. Second Mr. Gye used the replacement cost only while Mr. Fisher used a modified cost valuation for the six largest trees in which the size of the trunk and a species rating (supplied by the Pacific North West Chapter of the International Society of Arboriculture) and the more subjective percentage factors of condition and location were fed into a formula to estimate a modified replacement cost. Although Mr. Fisher's replacement costs were higher as a result of using the size of the actual trees for the six larger trees, his final valuation was considerably smaller than Mr. Gye's after he (Mr. Fisher) had applied various percentage factors for species, condition, and location.

[15]   I must consider the statutory basis for valuation. Section 20 of the Hydro and Power Authority Act merely says that the Expropriation Compensation Board is to determine the compensation. There are no further provisions in the Hydro and Power Authority Act with respect to the basis of compensation. There are other references in the Hydro and Power Authority Act to the Expropriation Act. These include section 16(1) of the Hydro and Power Authority Act, which gives the respondent the power to expropriate property in which case, pursuant to section 16(2), the Expropriation Act applies. In addition, section 16(1) of the Hydro and Power Authority Act, provides that the respondent can enter any property and use any property without an expropriation so long as it obtains the approval of the minister. In this case under section 16(8) and (9) of the Hydro and Power Authority Act the respondent must pay compensation for the property entered on or used and for the damages to any property that directly result from the entry or use. If the parties cannot agree, the amount of compensation must be determined by the Expropriation Compensation Board. Finally section 32 of the Hydro and Power Authority Act provides:

32 (1) Despite any specific provision in any Act to the contrary, except as otherwise provided by or under this Act, the authority is not bound by any statute or statutory provision of British Columbia.

(7) The following Acts and provisions apply to the authority:

…..

(j) the Expropriation Act …

[16]   Prior to 1987 and the initial enactment of the Expropriation Act, private arbitrators followed different procedures and different principles under a number of different acts when they needed to determine the compensation for property that had been taken. The passing of the Expropriation Act in 1987 made the Expropriation Compensation Board the body responsible for the determination of compensation for the land and property taken under a wide variety of statutes. One of the primary goals of the 1987 Act was to bring a uniform process for the taking of property and to have one body applying consistent compensation principles. See the remarks of the then Attorney General, the Hon. B.R. Smith, in the legislative debates which preceded passage of the Act in late 1987, as reported in Hansard, Official Report of Debates of the Legislative Assembly, May 19, 1987, pp 1211-1212. Although no expropriation of land has occurred in this case, the principles for compensation set out in the Expropriation Act are to be applied. At least in theory, the principle of market value as defined in section 32, the principle of compensation for those reasonable costs, expenses and financial losses in the nature of disturbance damages or personal losses under sections 34 or 40, and the principle of avoiding double compensation are all applicable. I note that in this case the facts are similar to one for a claim for injurious affection when no land is taken as set out in section 41. It also appears that most, if not all, of the requirements for claims under section 41 including the common law tests are met. The respondent is an expropriating authority with wide powers to expropriate any property for any purpose related to the exercise of its powers (even though because of section 20 of the Hydro and Power Authority Act it might not normally expropriate property in order to maintain the safety of its power lines). It had statutory authority to do what it did, its conduct in cutting the trees would have been actionable at common law, and the damage for which compensation is sought is to the land and not to a business.

[17]   Both counsel agreed that there were no cases in which compensation had been awarded under section 20 of the Hydro and Power Authority Act. Ms. Williams referred us to two cases on tree valuation. One of these was Kates v. Hall (1991), 53 B.C.L.R. (2d) 322 (B.C.C.A.) in which the Court of Appeal upheld the trial judge's award for compensation for the loss of 13 trees. The defendant respondent had trespassed on the plaintiff appellant's neighbouring three-acre property in West Vancouver and cut down 13 mature hemlock trees each of which was about 40 feet tall. The plaintiffs (appellants) sought damages of about $200,000 to plant equivalent 40 foot trees. The defendant's expert proposed a more modest replacement of 8 to 10 smaller trees and a hedge at a cost of $11,000. The trial judge awarded $21,000 for reasonable remedial work and $1,000 compensation per tree for loss of amenities until the replacement trees reached maturity. He also awarded punitive damages for the deliberate trespass. It was agreed that there was no measurable diminution in value of the property. Madam Justice Proudfoot speaking for the court reiterated the test for damages for losses incurred as a result of trespass as being what is reasonable in the circumstances; the plaintiff appellant does not necessarily obtain damages for what they wanted to replace the losses. Proudfoot J.A. also remarked on how the plaintiff had not done any of the work either at the time of the trial nor at the time of the appeal, some three years after the trees were cut. At p. 331 she commented "The court has to wonder whether these property owners are genuinely interested in restoring their privacy or whether they seek only retribution against the respondent".

[18]   In Kiessling v. Varga 2002 BCSC 90 the defendant had trespassed onto the plaintiff's neighbouring property and cut branches from the plaintiff's trees to improve the view from the defendant's property. Kates v. Hall was considered and the plaintiff was awarded $3,000 in damages for remedial pruning and loss of amenities.

[19]   The two cases detailed above are for trees damaged as a result of the tort of trespass. It is not clear to me from the appeal decision how the trial judge in Kates v. Hall derived his main compensation award of $21,000. In any event principles in tort law are not necessarily applicable to damages in expropriation cases. See E.C.E. Todd in The Law of Expropriation and Compensation in Canada, 2nd ed. (Carswell, Toronto, 1992) at p 305 note 180 and Casamiro Resource Corp. v. British Columbia (2000), 70 L.C.R. 81 (B.C.C.A.) at para 44. As I have indicated above there is no issue that the respondent had statutory authority to do what it did to maintain safety on its power lines and there is no element of wrongdoing by British Columbia Hydro and Power Authority.

[20]   In expropriation cases there has been a wide variety of approaches to valuation of trees. In Cooper v. Regional Municipality of York (1976), 11 L.C.R. 37 (Ont. L.C.B.) the Ontario Board described five possible approaches to assessing compensation for the value of trees taken including market value of the trees, diminution in market value of the land, contributory value of the landscaping to the market value and damages for injurious affection as a personal loss. This variety of approaches leads to different assessments for lost trees in each case and decisions that often are inconsistent. The Ontario Board in Cooper rejected one approach on statutory grounds; namely, the market value of the trees as trees, unrelated to their location on the land. At p. 42 of the decision it commented that this approach was inapplicable to an expropriation case since the use of "market value" as a basis for compensation was limited to "the market value of the land". In other words, the Ontario Act precluded the loss of trees being measured as a claim for damages for the market value of the trees, standing alone. Although I do not believe it affects the applicability of these remarks to the Expropriation Act in British Columbia, I note that the Ontario legislation is different from the British Columbia legislation and in particular there is a separate provision for damages for injurious affection whether or not land has been taken. Most of the Ontario cases awarding damages for trees have been pursuant to this section.

[21]   Damages for loss of trees on the basis of reduction in market value of the land have been awarded by this board in Clements et al v. Penticton (City), unreported, (February 10, 2003), ECB #57/01/232 - #66/01/232. In another decision of this board, Husband v. Langley (Township) (1996), 59 L.C.R. 221 (B.C.E.C.B.), nothing was awarded for the loss of trees because the figures provided by an arborist for valuation of lost trees were held not to be indicative of the reduction in market value of the remaining land to a potential purchaser. Another case that compensated for lost trees or landscaping on the basis of diminution in market value or contribution to market value is Bannon v. Minister of Transportation & Communications (1975), 8 L.C.R. 288 (Ont L.C.B.) where compensation for the loss of several maple, elm and cedar trees was assessed at a percentage of the market value of the land.

[22]   In a number of cases compensation for lost trees has been claimed on the basis of replacement costs. This approach is a relatively easy exercise for an arborist. But this does not mean that arborists using replacement costs necessarily agree. As we have seen in the two reports in this case, the use of replacement costs can lead to quite different results depending on the size of trees that are chosen as replacements, as well as whether a straight replacement cost or a modified replacement approach based on the trunk diameter and the various percentage factors is done. It is important to distinguish the use of replacement costs as a measure of compensation for the lost trees as an amenity and the expenses an owner may have incurred to actually replace the trees. When trees are claimed as an amenity they are to be valued as a contribution to the market value of the land. The owner is entitled to compensation for the loss of the amenity and it does not matter if the amenity is ever to be replaced. However, if the party is claiming the replacement costs as a disturbance damage the owner must prove the cost or expense is compensable under the Act. The cost must be reasonable and this board has denied those claims for costs or expenses that have not yet been incurred and are speculative. See Patterson v. British Columbia (Ministry of Transportation and Highways) (1994), 53 L.C.R. 88 (B.C.E.C.B.); aff'd 62 L.C.R. 89 (B.C.C.A.); Maddocks v. Surrey (City) (2001), 73 L.C.R. 161 (B.C.E.C.B.); Gorman Bros Lumber Ltd. v. British Columbia (Minister of Transportation and Highways), unreported (September 17, 2002), ECB #33/99/227 and Clements v. Penticton (City).

[23]   One of the difficulties with replacement costs as an indication of the value of an amenity was identified in Clements where at para 84 this board quoted from p. 93 of an excerpt from the Guide for Plant Appraisal 9th ed. published by the International Society of Arboriculture: "Cost does not necessarily create value. Although cost (less depreciation) can be a good estimate, it should not be the only source or consideration for determination of contributory value." The board in Clements went on to comment: "This is consistent with the appraisal principle that costs incurred on improvements are often not reflected in the market value of what a hypothetical purchaser and seller would agree in an open market as the price to be paid." The awards for the loss of various trees in Clements (based on the reduction in market value) were much less than the replacement costs that had been presented.

[24]   In Beamer v. Ministry of Transportation and Communications (1986), 35 L.C.R. 359 (O.M.B.) replacement costs for fewer and considerably smaller trees were awarded where the evidence was that the trees had been planted along the roadside of a rural property by the claimant's father in the 1890's. The board described the trees and hedge that were lost as an attractive and interesting landscape pattern which could be unique in its species distribution, according to expert opinion. In Cooper where the claim was for 10 mature maples that had been planted along the frontage of the property many years before, as well as three scotch pines and several other trees and shrubs, the board held that replacement costs of $15,300 would over compensate the claimant and they awarded substantially less ($7,900). Similarly, in Bick v. Regional Municipality of York (1981), 23 L.C.R. 374 (Ont. L.C.B) the board awarded less than the replacement costs for 22 mature cedar trees that provided privacy and a "silvan setting" for the residence on the property in order to avoid overcompensating the claimant. As for naturally occurring trees in rural areas, in Beamer the Ontario Board quoted from Noel, A.C.J., in The Queen v. Danis (1974), 5 L.C.R. 361 (Fed. T.D.) at 366:

… prices (as shown) in a nurseryman's catalogue … is not the way to establish the value because in most cases, in the country, such trees are produced by nature and consequently their cost should be less than [nursery stock].

In another rural case, the owner was compensated on what was characterized as an arbitrary basis in the sum of $6,000 for the injurious affection arising from the loss of a substantial stand of naturally growing walnut trees, although the parties had agreed that these trees had a value of almost $19,000 as standing timber. It was emphasized that these naturally grown trees would not be replaced and that the amount of compensation was not based on a reduction in market value. See Parkins v. Ministry of Transportation & Communications (1985), 32 L.C.R. 182 (O.M.B.).

[25]   In this case I have no evidence with respect to the effect of the lost trees on the market value of Ms. Williams' property. The evidence I do have are two reports based on replacement cost estimates, done on different principles, with one valuation being almost twice the amount of the other. A difficulty with Mr. Fisher's report is that he is an employee of the respondent who has prepared his valuation report shortly before the hearing of this matter, as an alternative to the report by Mr. Gye, who was the independent arborist who had been retained by the respondent to help resolve the dispute. As a result Mr. Fisher does not have the same degree of independence that one would prefer in an expert rendering his opinion on an appraisal valuation. In the circumstances I accord Mr. Gye's report more weight.

[26]   I appreciate Ms. Williams' attachment to the wooded area on her property and the privacy that the trees provide for the interior of the lot. However, the photographs in evidence suggest that because a substantial wooded area remains at the south perimeter of the property the reduction in privacy is relatively minor and will only be temporary until the young saplings and the remaining trees in this wooded area undergo further growth. Mr. Fisher told us the big leaf maples grow at the rate of one to three metres a year. It appears to me that this is the case whether or not any new trees of any size are planted by Ms. Williams. I agree with the comment in The Queen v. Danis that replacement costs from a nurseryman's catalogue are not the best way to establish value in the country for naturally growing trees. The trees that were cut down on Ms. Williams' property were not landscape feature trees like those that were the subject of some of the other cases that I have described.

[27]   Nonetheless Ms. Williams is to be compensated for the loss of her 12 trees under section 20 of the Hydro and Power Authority Act and the principles for compensation found in the Expropriation Act. Ms. Williams is entitled to be compensated for the loss of the amenity of these trees. Replacement costs have sometimes been used as the basis for compensation awarded for injurious affection to the property or the loss of amenities. However, as in Cooper and Bick, I find that Ms. Williams would be over compensated with Mr. Gye's valuation based on the average replacement costs from nurseries on the mainland for a total of twelve 4-inch calliper trees. After reviewing the evidence and the relative case law I conclude that the somewhat arbitrary figure of $5,000 is an appropriate award for compensation for the loss of the amenity of these 12 trees.

[28]   Ms. Williams also claimed transport and labour costs to replant the trees in addition to the compensation for the trees. As indicated above I accept Mr. Fisher's evidence that the unit rate of $45 per square inch included the cost of transport and labour to install the trees. In any event, I do not find it likely that Ms. Williams will incur the costs to transport and reinstall 4-inch calliper trees from the mainland. In a claim for loss of an amenity rather than disturbance damages, the cost of transport and labour to install the trees is less relevant.

4.   INTEREST

[29]   The claimant seeks interest under section 46 of the Act on the compensation awarded. This was not claimed in her Form A since she filed this Form herself. However, Mr. O'Meara claimed these at the hearing. The respondent says that because the claim was brought under section 20 of the Hydro and Power Authority Act the interest provisions under section 46 do not apply. Section 46 states that:

46 (1) The expropriating authority must pay interest on any amount awarded in excess of any amount paid by the expropriating authority under section 20(1) or (12) 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.

Because this was not an expropriation, the respondent has not made an advance payment under section 20. As a result, the respondent says, no interest under section 46 is payable.

[30]   I have found above that compensation for the lost trees is to be determined according to the principles found in the Expropriation Act. In the absence of any specific exclusion, interest is one of the components of compensation. I have also said that Ms. Williams' claim under section 20 of the Hydro and Power Authority Act has some similarities to a claim for injurious affection under section 41 of the Expropriation Act.

[31]   In Jesperson's Brake & Muffler Ltd. v. Chilliwack (District) (1992), 47 L.C.R. 172 (B.C.E.C.B.), this board decided that the provisions with respect to interest in section 46 are applicable in cases where the claim was brought for injurious affection with no land taken under section [41]. In such cases there are also no advance payments made under section 20. This decision was appealed and Mr. Justice Finch speaking for the British Columbia Court of Appeal (1994) 52 L.C.R. 95 at p. 102 stated:

The board noted its power under section [41(3)(b)] to award compensation for injurious affection. Since such an award would be one made outside of section [20], the board held that it must come within the words "or otherwise" of section [46(1)]. The board therefore concluded that its jurisdiction included the power to award interest in claims for pure injurious affection.

The respondent did not challenge this conclusion on appeal, and in my respectful view the board arrived at the correct result on this point. As Farris C.J.B.C. noted in British Columbia (Minister of Highways) v Richland Estates Ltd. (1973), 4 L.C.R. 85 (B.C.C.A.) at p. 87, when considering the proper compensation for an expropriation the board must recognize all elements which will ensure that the owner is made economically whole. Interest is one of those elements." Although the Chief Justice there referred to an expropriation under the Highway Act, R.S.B.C. 1960, c. 172, as amended, there is nothing in his remarks to deny their application to successful claims of injurious affection under the Expropriation Act.

The court went on to overturn the board's decision with respect to additional interest under section 46(4) and to hold that additional interest under section 46(4) is not payable in cases of pure injurious affection where no land has been taken and where there has been no advance payment.

[32]   I find that Ms. Williams is entitled to interest on the compensation awarded under section 46(1) of the Expropriation Act. She is not entitled to additional interest under section 46(4).

[33]   The respondent also submitted that if interest was to be awarded under section 46(1) then the amount of interest should be reduced because the claimant had delayed in bringing the matter on for hearing. This submission had not been pled in the Form B but neither had Ms. Williams claimed interest in her Form A. In the circumstances I will consider the respondent's submission. Section 47 of the Act provides:

47 If, in the opinion of the board, an unreasonable delay in proceedings under this Act has been caused by an owner or the expropriating authority, the board may penalize

(a) the owner, by depriving the owner, in whole or in part, of the interest to which he or she is entitled, or

(b) the expropriating authority, by increasing, by not more than double, the interest it is required to pay.

The respondent says that pursuant to section 47 the claimant should be deprived of interest because she has unreasonably delayed the proceedings.

[34]   In this case a chronology can be created from the pleadings and the evidence that was presented at the hearing. The 12 trees were removed in June 1994. There was evidence that Ms. Williams submitted a written claim to the respondent by July 1995. The Form A was filed by Ms. Williams herself in January 1998 and while it appears there were some negotiations between the parties there was no evidence presented as to what had transpired between the parties between June 1994 and January 1998 that might have contributed to the delay. Mr. Gye was retained by B.C. Hydro in March 1998 and he attended the site in August 1998 and prepared his report that states that its purpose was to assist the parties in resolving their dispute. However, the matter did not settle and the claimant had to file a Notice of Motion requesting a response from the respondent, before a Form B was filed in October 2000. One year later, in October 2001, Ms. Williams retained counsel, Michael O'Meara, who filed a Notice of Appointment of Solicitor. A hearing date was scheduled for February 2002 but the claimant requested an adjournment shortly before the hearing because of a misunderstanding about settlement of one of the issues and the lack of an expert report if it was not settled. The hearing was rescheduled to July 2002.

[35]   In Bayview Builders Supply (1972) Ltd. v. British Columbia (Minister of Transportation and Highways), (1999), 66 L.C.R. 176 (B.C.C.A.) Newbury J.A. speaking for the court held that "proceedings" in section [47] should be construed widely and included events that in that particular case predated the actual expropriation. She also defined unreasonable delay (quoting from Amherst v. James Walker Goldsmith & Silversmith Ltd., [1983] 2 All E.R. 1067 (C.A.)) as "such delay as it would not in the circumstances be reasonable to expect the other party to put up with". In this case the claimant waited four years to file the Form A, but the respondent contributed to the overall delay in taking almost another three years to file the Form B. Thirty days after the Form A has been served, either party can bring the matter on for hearing. Thus it appears that both parties must share in the responsibility for the delay in this matter being heard. In the circumstances and on the evidence before me I am not able to say that the delay by the claimant was so unreasonable that the respondent should not have had to put up with it. I award interest pursuant to section 46(1) on the compensation awarded of $5,000 from July 1, 1994 until paid. This board in Richland Farms Ltd. v. British Columbia (Ministry of Transportation and Highways) (1991), 46 L.C.R. 66 established that interest under section 46(1) compounds annually.

5.   COSTS

[36]   The claimant also seeks her costs under section 45 of the Act. Once again the respondent says that the cost provisions under section 45 do not apply to a claim brought under section 20 of the Hydro and Power Authority Act. The relevant legislative provisions of the Act are:

41 (2) The repeal of the Expropriation Act, R.S.B.C. 1979, c. 117, and the amendments and repeals in sections 56 to 128 of the Expropriation Act, S.B.C. 1987, c. 23, are deemed not to change the law respecting injurious affection if no land of an owner is expropriated, and an owner whose land is not taken or acquired is, despite those amendments or repeals, entitled to compensation to the same extent, if any, that the owner would have been entitled to had those enactments not been amended or repealed.

(3) An owner referred to in subsection (2) who wishes to make a claim for compensation for injurious affection must make his or her claim by applying to the board, and the board must hear the claim and determine

(a) whether the claimant is entitled to compensation, and

(b) if entitled to compensation, the amount of the compensation

45 (3) Subject to subsections (4) to (6), a person whose interest or estate in land is expropriated is entitled to be paid costs necessarily incurred by the person for the purpose of asserting his or her claim for compensation or damages.

(6) On a claim under section 41(3), the board may award, in its discretion, costs to the claimant or the expropriation authority.

Because there has not been an expropriation the respondent says that the claimant is not entitled to costs under section 45(3). The respondent also said that since the claim was not brought under section 41(3) the claimant was not entitled to costs under section 45(6) either.

[37]   As I have stated above the principles of compensation found in the Expropriation Act apply to this case. Ms. Williams' claim under section 20 of the Hydro and Power Authority Act is similar to a claim for injurious affection under section 41 of the Expropriation Act. I conclude that Ms. Williams is entitled to make a claim for costs under section 45(6) and that under this section I have a discretion to award costs to her or to the respondent.

[38]   Under the Expropriation Act claimants who seek compensation for injurious affection with no land taken do not enjoy the same presumption of entitlement to costs as claimants who have had at least some part of their land expropriated. The board may award costs to the claimant or to the expropriating authority. These costs may be awarded in whole or in part. However, if the board exercises its discretion to award the claimant all or part of its costs, then under section 45(7) of the Act the claimant is entitled to its costs on the same basis as other claimants. See Jesperson's Brake & Muffler Ltd. v. District of Chilliwack (No.2) (1993), 51 L.C.R. 62 (B.C.E.C.B.), where a former chair of this board, Jeanne Harvey, discusses some of the principles of awarding costs in claims under section 41.

[39]   There has been no advance payment in this case for me to consider in exercising my discretion as to costs. Ms. Williams has been awarded less than was estimated in Mr. Gye's report when one of the purposes of his report was to assist the parties in settling compensation. I exercise my discretion to award Ms. Williams 75% of her reasonable costs under section 45 of the Act and the Tariff of Costs Regulation, B.C. Reg. 189/99 (the Tariff) for the items performed by Mr. O'Meara.

[40]   This matter was less than ordinary difficulty and accordingly costs are awarded at Scale 1.

THEREFORE IT IS ORDERED THAT the respondent, British Columbia Hydro & Power Authority, shall pay the Claimant, Leslie Williams:

1. Compensation in the amount of $5,000 for the loss of 12 trees from her property pursuant to section 20 of the Hydro and Power Authority Act.

2. Interest on the monies awarded pursuant to section 46(1) of the Act on $5,000 from July 1, 1994 until paid. Pursuant to section 46(2) of the Act, interest shall be calculated annually at the following rates:

a) Eight per cent (8.0%) from July 1, 1994 to December 31, 1994.
b) Eight per cent (8.0%) from January 1, 1995 to June 30, 1995.
c) Eight and three-quarters per cent (8.75%) from July 1, 1995 to December 31, 1995.
d) Seven and one-half per cent (7.5%) from January 1, 1996 to June 30, 1996.
e) Six and one-half per cent (6.5%) from July 1, 1996 to December 31, 1996.
f) Four and three-quarters per cent (4.75%) from January 1, 1997 to June 30, 1997.
g) Four and three-quarters per cent (4.75%) from July 1, 1997 to December 31, 1997.
h) Six per cent (6.00%) from January 1, 1998 to June 30, 1998.
i) Six and one-half per cent (6.5%) from July 1, 1998 to December 31, 1998.
j) Six and three-quarters per cent (6.75%) from January 1, 1999 to June 30, 1999.
k) Six and one-quarter per cent (6.25%) from July 1, 1999 to December 31, 1999.
l) Six and one-half per cent (6.5%) from January 1, 2000 to June 30, 2000.
m) Seven and one-half per cent (7.5%) from July 1, 2000 to December 31, 2000.
n) Seven and one-half per cent (7.5%) from January 1, 2001 to June 30, 2001.
o) Six and one-quarter per cent (6.25%) from July 1, 2001 to December 31, 2001.
p) Four per cent (4.00%) from January 1, 2002 to June 30, 2002.
q) Four and one quarter per cent (4.25%) from July 1, 2002 to December 31, 2002.
r) Four and one-half per cent (4.5%) from January 1, 2003 to June 30, 2003

3. Pursuant to section 45 of the Act and the Tariff of Costs Regulation, B.C. Reg 189/99 75% of her reasonable costs for items performed by Mr. O'Meara at Scale 1.