Ecb Control No. 10/00
Tariff Costs
I am prepared to make a decision
at this point with respect to the claimants' application
for a review of interim costs and an award of advance
costs in the matter.
Let me say at the outset that I
consider the manner in which these cost claims have
been presented to the Board for review to be woefully
inadequate in a number of particulars.
First of all, as I indicated initially
— and I'm not persuaded by anything that I heard in
the course of the hearing from claimants' counsel
— in my view, it is inappropriate in these circumstances
to render separate bills of costs for each of two
owners who have together asserted one application
for determination of compensation in which the claims
for compensation are not allocated as between owners.
In fact, no issue appears to be different between
them with respect to what is being asserted, and these
bills are, in fact, duplications of each other and
except for the matter of disbursements, at least if
accepted in that format, would result in roughly double
the amount of costs which they might otherwise be
entitled to seek to recover from the respondent. In
my view, one legal bill of costs in tariff format
and one real estate appraisal bill of costs presented
in tariff format, is the appropriate way in which
these matters should come before the Board on an interim
cost review.
Secondly, I am not satisfied on
the evidence that Scale 3 is an appropriate scale
to fix for the award of any costs, and quite to the
contrary, it appears to me that at this stage, this
is a reasonably straightforward matter in which the
single issue to be determined, as best can be judged
from the pleadings and from what has been said in
this matter, is the highest and best use of the property
before and after the taking and injurious affection
to the remainder of the property which is not taken.
That strikes me on its face as being a reasonably
straightforward matter. The fact that counsel have
agreed that five days would be sufficient for the
hearing of this compensation claim again suggests,
that the matter is not unduly complicated. At best,
in my view, Scale 2 would be the appropriate scale
to fix for this interim review.
Thirdly, for the most part I have
almost no useful evidence before me to be able to
assess costs which have been incurred, or the necessity
or reasonableness of the costs that are claimed, with
the exception of certain items which have already
been discussed, and I think essentially agreed on
between counsel in this respect. Certainly the claimants'
choice to affix the maximum number of units in each
category, where a range is prescribed, would need
to be supported by a great deal more evidence than
has been offered in the material which is before me.
I recognize that an interim cost
review — and the Board has often made this point —
is a summary process; that not every detail need be
disclosed and that there is some appreciation on the
part of the Board, that disclosure of a great deal
of information could prejudice the claimants' case,
or its strategy for proceedings with the case. On
the other hand, the Board has often in the past made
the point that without full disclosure of everything
that might be taking place, that it must be within
the ingenuity of counsel to be able to provide some
reasonable indication that a particular amount of
work has been performed, the nature of the work performed
and the time expended, in order to be able to allow
me to make an assessment of the necessity for and
the reasonableness of what is being done.
I note that claimants' counsel suggests
that if I am dissatisfied with the evidence that I
have before me, that the claimant should be granted
liberty to adduce further evidence at some further
interim cost hearing with respect to these bills of
cost. The effect of that course is, in my view, under
the tariff to require the respondent to pay twice
for essentially the same review and it strikes me
as not appropriate to expect the respondent to do
that when in fact adequate evidence might have been
provided in the first instance which would have allowed
me to make a more thorough assessment. Instead, I
am prepared to make an assessment of these bills of
costs based on what I can discern summarily from the
evidence which was provided and from other material
which is before the Board at this point.
So, let me therefore turn to the
actual Tariff Cost Claim Schedule. First of all, with
respect to legal costs, and I make the point again
that I am only looking at one legal bill of cost which
is applicable to both Mr. and Mrs. Yue. With respect
to the first item, Correspondence, where the range
is 1 to 20 and the number of units claimed is 20,
it strikes me that at this stage in the proceedings
that some level of correspondence, investigations
and so forth, matters that are called for under Item
1, have most likely been performed and I am prepared
to assess 5 units with respect to that item.
As to the instruction of the expert,
that is the real estate appraiser, I accept from the
affidavit evidence that Mr. Melville has had preliminary
discussions with the real estate appraiser. He has
instructed him with respect to work to be done in
connection with the claim. On the other hand, I believe
his own affidavit refers to preliminary discussions.
It is quite clear that this is not the end of the
process in terms of his involvement with the expert,
yet, on a range of 1 to 5 units, 5 units have been
claimed. I will assess 3 units as being appropriate
in the circumstances.
Item 5, Prosecuting the Claim. The
Board does have, of course, the Application for Determination
of Compensation filed in this matter. I don't have
the particulars which were ordered by the Board to
be provided to the respondent, but I hear no objection
taken to the proposition as set out in Mr. Melville's
affidavit that particulars were provided. This item
calls for a range of units from 1 to 10, and given
the state of proceedings and given the likelihood
, in any case, that the Application for Determination
of Compensation will almost certainly need to be amended
at some point before the hearing proceeds — that was
indicated back in the May application — I would assess
5 units for that item.
Items 12, 13 and 21 appear not to
be in dispute and, therefore, again I would award
1.5 units as claimed for Item 12; 2.5 for Item 13
and 1 unit for Item 21.
I believe that totals 18 units in
all and in my view those should be assessed at Scale
2. The respondent does not take issue with the adding
on of GST in this instance, and PST is also applicable,
as we know, to legal accounts and so those matters
are not in dispute, but of course need to be recalculated
in light of what I have awarded in this respect.
Dealing with the disbursements.
There was no actual objection taken to the disbursements
which are listed. Mr. Melville in his affidavit indicated
that the disbursements had, in fact, been split evenly
between Mr. and Mrs. Yue's bill so, therefore, I would
say that the disbursements as shown in those two bills
of cost, which would appear to total some $31.67 times
two, those disbursements will be allowed as claimed.
Turning to the real estate appraisal
costs, where of course I have even less direct evidence
in terms of what has actually taken place, what work
has been undertaken by the appraiser. I have simply
Mr. Melville's affidavit based on his information
and belief as to what has taken place, but I accept
on the sworn affidavit evidence that real estate appraisal
work has gone forward. With respect to Item 1 where
a range of 1 to 20 is indicated, I would allow 5.
Item 2 which involves the inspection of the subject
property, the range of 1 to 30 is provided. At this
juncture, based on the very slim amount of information
that I have as to the amount of work which has been
done or which remains to be done, I would summarily
allow 10 units. Market research, again, a range of
1 to 20, I will allow 5 units. With respect to the
inspection of comparables on a range of 1 to 20, I
am prepared to allow 5 units for a total for real
estate appraisal costs of 20 units on again Scale
2. GST can be claimed on that revised amount and I
understood claimants' counsel quite properly to concede
that PST should not be payable on that portion of
the bill.
Just to clarify what I said earlier,
in my view this matter should not be open for further
assessment of cost on this particular cost items.
Of course, the cost claimed can always be reviewed
at the end of day in a section 45 final review of
costs. However, at this point I would say that the
review with respect to this interim billing is complete
and final.
That completes my decision
in the matter.
