December 11, 2003, E.C.B. No. 08/91/244

REASONS FOR DECISION

1.  INTRODUCTION

[1]  This decision concerns whether the board can revisit its compensation decision in this matter and possibly vary the determination it made as to the claimant Pay Less' entitlement to additional interest under section 46(4) of the Expropriation Act, R.S.B.C. 1996, c. 125 (the "Act").

[2]  Section 46(4) provides:

2.  BACKGROUND

[3]  On September 21, 2001, this three-member panel of the board rendered our compensation decision: see Pay Less Gas Co. (1972) Ltd. v. British Columbia (Minister of Transportation and Highways) (2001), 74 L.C.R. 81. We determined, among other things, that Pay Less was not entitled to additional interest under section 46(4). We stated:

[477] Since the total amount of the advance payments is more than 90% of the compensation awarded, excluding interest and business loss, the provision for additional interest under s. 46(4) does not apply.

[4]  Although deciding all other issues which were before us at the compensation hearing, we adjourned the issue of Pay Less' entitlement to costs under section 45 of the Act. We did so with the observation at paragraph 479 that, on the assumption the business losses we awarded were to be excluded from the percentage calculation required under section 45(4), Pay Less had not met the "greater than 115%" threshold which would have automatically entitled the claimant company to its costs and it appeared that we had discretion in the awarding of costs.

[5]  The panel eventually reconvened to consider oral and written submissions from both parties on Pay Less' costs entitlement. No new evidence was introduced. On June 20, 2002, the panel released a majority decision and a dissent on this issue (reported at 77 L.C.R. 171). The majority concluded that, on the evidence and on a proper construction of the relevant statutory provisions, the compensation awarded to Pay Less other than for excluded business losses was greater than 115% of the amount paid by the Ministry under section 20(1) and (12) or otherwise. Pay Less had therefore exceeded the percentage threshold set out in section 45(4) and was entitled as of right to its costs. On the dissenting member's analysis, the compensation awarded was less than 115% of the amount paid by the Ministry and the panel therefore had a discretion in the awarding of costs under section 45(5).

[6]  In dealing with costs entitlement, both the majority and the dissenting member also raised the subject of additional interest.

[7]  The majority observed at paragraph 72 that their analysis and conclusion on entitlement to costs "puts in question the correctness of the panel's determination with respect to additional interest." They continued:

[74]  The question of additional interest was not before the panel at its reconvened hearing on costs entitlement, and accordingly the majority consider that it would be inappropriate in this decision to go further than simply alerting the parties to the nature of our concern. Moreover, it is arguable whether the panel has the jurisdiction to reconsider its determination or whether it is functus officio with respect to the matter.

[75]  If the parties, in light of what has already been said, are unable to resolve between themselves any issue which may now arise around entitlement to additional interest, they are at liberty to apply to the board.

[8]  The dissenting member, after concluding that the panel had a discretion as to costs, went on to state at paragraph 87:

It also follows from my analysis that no additional interest would be payable under s. 46(4).

[9]  Pay Less and the Ministry were unable to resolve between themselves the issue around entitlement to additional interest in light of the two foregoing decisions. They applied to the board for a further determination which has proceeded entirely on the basis of written submissions, case authorities, and an affidavit sworn on behalf of the Ministry.

3.  ISSUES

[10]  The threshold issue before us is whether we are functus officio, that is, having already rendered our final decision on additional interest, we therefore have no further authority in the matter.

[11]  If we find that we are not functus officio, then the further issue is whether we should vary our compensation decision in light of the majority's subsequent finding with respect to costs entitlement and also award Pay Less additional interest pursuant to section 46(4).

4.  THE PARTIES' POSITIONS

4.1  Pay Less' Position

[12]  Pay Less relies on the judgment of Harvey J. in Brennan v. Singh et al., 2001 BCSC 1812, for the proposition that a decision maker can only be functus officio where the final order has been entered and all issues have been considered and decided. That, it submits, is not the case in the present instance where the hearing panel adjourned the issue of entitlement to costs.

[13]  According to Pay Less, the panel's determination in its compensation decision of September 21, 2001 that the claimant company was not entitled to additional interest was based only on its initial assessment of the advance payments made by the Ministry. Pay Less submits that the panel's treatment of section 46(4) was, and must be, entirely dependent upon the consideration and characterizations of the advance payments.

[14]  In turn, the panel's finding on additional interest, Pay Less says, has to be viewed in light of its treatment of the issue of costs entitlement. In adjourning that issue, the panel had sought the benefit of submissions and clarifications with respect to what it later described as incomplete and somewhat conflicting evidence regarding the advance payments. After receiving submissions on and undertaking further analysis of the advance payments, the majority of the panel concluded that Pay Less was entitled as of right to its costs.

[15]  Pay Less contends that only after the advance payments were specifically addressed in the majority's decision of June 20, 2002 did the proper treatment of section 46(4) come into play. By virtue of that decision, according to Pay Less, the majority determined that the advance payments made did not equal 90% of the compensation awarded.

[16]  Since in Pay Less' submission the board is not functus officio, the hearing panel is now able to make the determination that the claimant company is entitled to additional interest. Moreover, section 46(4) provides for a mandatory order in the event that certain thresholds are satisfied. There is no discretionary leeway granted to the adjudicator. By reason of the majority decision of June 20, 2002, Pay Less says, the claimant company has been found to have met the threshold required under section 46(4) and accordingly must be awarded additional interest.

4.2  Ministry's Position

[17]  The Ministry submits that the board is functus officio in relation to all issues arising from the hearing panel's compensation decision of September 21, 2001 other than the issue of entitlement to costs and, in particular, is functus in relation to the ruling on additional interest.

[18]  The Ministry relies on the judgment of the Supreme Court of Canada in Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848, for the proposition that the principle of functus officio applies to administrative tribunals with certain exceptions and limitations none of which the Ministry says pertains in the present instance. With reference to the two main exceptions, the Ministry says, firstly, there is nothing in the Act indicating that the board has the jurisdiction to reopen its decisions and, secondly, the hearing panel in this instance did not fail to dispose of the issue of additional interest in the compensation decision. To the contrary, the panel's ruling in paragraph 477 as recited above was clear, unequivocal and final.

[19]  While the panel expressly adjourned the issue of costs and accordingly retained jurisdiction on that issue, the Ministry says there was no express reservation of jurisdiction over the issue of interest under section 46(4) nor can such a reservation be implied. According to the Ministry, the Brennan judgment upon which Pay Less relies is not authority for the proposition that a decision maker retains jurisdiction on all issues until all issues have been decided.

[20]  The Ministry also submits that the parties themselves have acted as though the panel's determination with respect to additional interest was final, subject only to appeal. Included among the exhibits attached to the affidavit sworn on behalf of the Ministry was a signed Acknowledgment of Payment dated March 11, 2002, wherein Pay Less acknowledged payment by the Ministry of $260,209.93 "in full satisfaction of the decision of the Expropriation Compensation Board dated the 21st day of September, 2001, other than for costs." The payment did not include any amount for additional interest.

[21]  If in light of its further decision of June 20, 2002 there is reason to believe that the panel erred with respect to entitlement to additional interest in the compensation decision, the Ministry says the remedy is by way of appeal. As evidenced in the affidavit, both Pay Less and the Ministry have filed applications for leave to appeal to the British Columbia Court of Appeal. Pay Less has sought leave to appeal from the board's compensation decision while the Ministry has sought leave to appeal from the costs entitlement decision. Although Pay Less did not make the panel's finding on additional interest the subject of appeal, the Ministry says the leave application could be amended to include this issue. Furthermore, if Pay Less' appeal were to be so amended and consolidated with the Ministry's appeal, the Court of Appeal would then be able to deal with both related issues of costs and interest arising from the advance payments and the award.

5.  BOARD'S ANALYSIS AND CONCLUSION

[22]  The board has previously considered the principle of functus officio in relation to its own decisions in a number of matters: see Creative Stretch Fabrics Ltd. v Pitt Meadows (District) (1994), 54 L.C.R. 128 at pp. 142-143; Sequoia Springs West Development Corp. v. British Columbia (Minister of Transportation and Highways) (2001), 71 L.C.R. 315 at pp. 318-319; 415528 B.C. Ltd. v. Greater Vancouver Sewerage and Drainage District, unreported, March 20, 2003, E.C.B. No. 48/95/234.

[23]  Central to the board's considerations in all of these decisions was the majority judgment of Sopinka J. in the Chandler case. Justice Sopinka stated at p. 861:

…[T]here is a sound policy reason for recognizing the finality of proceedings before administrative tribunals. As a general rule, once such a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances. It can only do so if authorized by statute or if there has been a slip or error within the exceptions enunciated in Paper Machinery Ltd. v. J.O. Ross, Engineering Corp., supra.

[24]  From our review of the other board decisions and from reviewing Chandler itself, we extract the following guiding principles:

• It is inherent in the majority judgment in Chandler that the principle of functus officio as applied in the courts can also apply to administrative tribunals.
• There are two recognized exceptions to the general rule that a final decision of a court cannot be reopened after the formal judgment has been drawn up, issued and entered: first, where there was a slip in drawing it up, and second, where there was an error in expressing the manifest intention of the court.
• The principle of functus officio should not be strictly applied to an administrative tribunal where there are indications in the enabling statute that a decision can be reopened.
• Where the enabling statute does not purport to confer on the tribunal the power to rescind, vary, amend or reconsider a final decision, it is necessary to consider whether the tribunal has made a final decision and is therefore functus officio.
• If the tribunal has failed to dispose of an issue which is fairly raised by the proceedings and of which the tribunal is empowered by its enabling statute to dispose, it ought to be allowed to complete its statutory task.
• The application of the principle of functus officio must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law.

[25]  After reviewing the foregoing principles in the context of the board's enabling statute and the two decisions rendered in this matter, we conclude that we are functus officio and unable to revisit our determination with respect to additional interest under section 46(4) of the Act for the reasons which follow.

[26]  In the first place, the determination we made in the compensation decision that Pay Less was not entitled to additional interest was a final rather than initial or preliminary determination on that issue. This was so notwithstanding that the majority of the hearing panel later called its correctness into question based on a close analysis of both the advance payments which had been made and the statutory regime which establishes entitlement to costs and additional interest. There was no express reservation of jurisdiction over the issue of additional interest in the September 21, 2001 decision, and we agree with the Ministry that such a reservation cannot be implied from the language of the decision which in our view was clear and unequivocal on that issue.

[27]  The Brennan judgment upon which Pay Less relies is distinguishable. In that case an entered order representing a determination of the cost of future care was found to be preliminary to an assessment of the quantum of damages to be awarded for the cost of future care. Until that assessment was made, the court found that it was not functus officio with respect to the issue of the cost of future care. We agree with the Ministry that Brennan is not authority for the proposition that a decision maker retains jurisdiction on all issues until all issues have been decided. In our view the fact that some issues, as in this instance the issue of costs entitlement, are left open in a decision does not mean that all other issues which have been determined in that decision also remain open.

[28]  In the second place, the two recognized exceptions to the general rule of functus officio have no application in the present instance. There cannot be said to have been any slip in drawing up our compensation decision insofar as it related to the subject of additional interest and no error in expressing our manifest intention with respect to that issue even though in retrospect the majority of the hearing panel expressed concern. For its part the claimant did not allege slip or error.

[29]  In the third place, we agree with the Ministry that there is nothing in the Act indicating the board has jurisdiction to reopen its final decisions in order to rescind, vary, amend or reconsider them. In the absence of such statutory authority or an express reservation in the decision itself, the board's jurisdiction in the matter does not extend beyond the enumerated exceptions to the general rule of functus officio once a final decision has been rendered.

[30]  Finally, we consider in light of Chandler that the board is subject to a stricter application of the principle of functus officio than may be the case with some other administrative tribunals the decisions of which are subject to appeal only on a point of law. Appeals from decisions of the board are with leave of the Court of Appeal. As noted in the recent 415528 B.C. Ltd. decision, there is a full right of appeal under the Act. Appeals are not restricted to points of law and leave has sometimes been granted on factual matters. Furthermore, as Rowles J.A. noted in granting leave to appeal from the Sequoia Springs decision of the board, at p. 104 (71 L.C.R.):

…as an appeal to this Court is the first, and most likely only, opportunity for an appeal or review of an award of the Expropriation Board [sic], the tests applied for granting leave should not be excessively stringent.

In the present instance, as we have noted, appeal proceedings are already underway and can likely be expanded to embrace the issue of entitlement to additional interest.

[31]  In our view the only reasons for revisiting our compensation decision insofar as it concerns entitlement to additional interest would be because we had changed our minds, believed we had made an error within jurisdiction, or because there was a change in circumstances. On the authority of Chandler, none of these is a ground which overrides the principle of functus officio.

[32]  It is unnecessary in light of our conclusion on this issue to consider the Ministry's further argument, as we understood it, that the Acknowledgment of Payment by Pay Less provided a form of waiver or release in favour of the Ministry on the issue of entitlement to additional interest.