|
July 18, 2002, E.C.B. 12/00/224
| Between: |
Donna
Marie Chivers and Gary Carnegie Chivers
Claimants |
| And: |
Her
Majesty the Queen in the Right of the
Province of British Columbia
Respondent |
| Before: |
M. Gwendolynne
Taylor, Presiding Member |
| Appearances: |
Lisa
D. McBain, Counsel for the Claimant
Carolyn P. Bouck, Counsel for the Respondent |
REASONS FOR DECISION
Introduction
[1] This is an application
under s. 48(3) of the Expropriation Act, R.S.B.C.
1996, c. 125 (the "Act") and the Tariff
of Costs Regulation, B.C. Reg. 189/99 (the "Tariff")
for review of three accounts. I was delegated the power
to conduct this review by the chair pursuant to section
48(4) of the Act.
[2] The expropriation was
a partial taking of property in June 1999 for a highway
widening project. The claimants filed with the board
an application for determination of compensation (the
"Form A") on March 6, 2000, and an Amended
Form A on March 26, 2001. The respondent filed a reply
(the "Form B") on June 5, 2000, and an Amended
Form B on May 8, 2001. On October 25, 2001, the board's
chair heard an application brought by the respondent
to cancel or set aside two summonses to witness which
the board had earlier issued. On November 1, 2001, the
chair heard together 3 applications brought by the parties
- the respondent's application to dismiss part of the
claimants' claim, the claimants' application for orders
determining the board's jurisdiction to dismiss a claim,
further amending the Form A, and extending the scheduled
length of the compensation hearing, and the claimants'
further application for document production. The decision
on those applications is found at Donna Marie Chivers
& Gary Carnegie Chivers v. Her Majesty the Queen
in Right of the Province of British Columbia, unreported,
December 28, 2001, E.C.B. No. 12/00/216.
[3] At the time of this
cost review, the hearing dates had been adjourned twice,
from June 4, 2001 to December 3, 2001 and to February
11, 2002. The hearing scheduled for February, 2002 was
set for 10 days and, at this review, the parties anticipated
that another five days might be required. The board
registry advises me that the case has been further adjourned
and has not yet been heard.
[4] The claimants characterize
this expropriation as complex, involving change in access
to the remaining property, severance of the property
for highway widening, entitlement to gravel royalties,
and impact on the claimants' hay and cattle ranch, horse
breeding and training ranch, selective tree harvesting
and gravel exploitation. Additionally, they note issues
concerning the highest and best use of the severed portions
of the remaining land and concerning the Agricultural
Land Reserve (ALR) designation. Nonetheless, the claimants
presented this application for costs insofar as the
Tariff is concerned based on Scale 2, which covers matters
of ordinary difficulty or importance.
[5] The claimants submit
that the scope of the issues, number of experts, discovery
processes, investigation, correspondence, advice on
the ALR & agrology issues, the motion to dismiss,
and two adjournments of the hearing, have resulted in
more than an average amount of time spent. Accordingly,
the claimants submit that they are entitled to some
costs in excess of the mid-point of the ranges under
both the legal and real estate appraisal schedules of
the Tariff.
[6] The respondent submits
that this expropriation involves a small taking of a
strip of land, the property was already severed and,
although there is some change to the access to the property,
it is not compensable. To the respondent's view, this
case does not present above average complexity or require
above average time. The respondent accepted that Scale
2 is appropriate and argued that, at this stage, only
mid-range Tariff units should be applied.
Issues
[7] The general issue is
whether the costs claimed are reasonable, proper and
necessary within the meaning of the Act and the Tariff.
[8] Section 48(5) of the
Act provides:
| (5) |
At a review under
subsection (2) or (3), the person conducting the
review must, after taking into account all relevant
circumstances, assess the reasonableness of the
bill and may make an order with respect to its payment,
accordingly. |
[9] Section
3(2) of the Tariff provides:
| (2) |
When making an assessment
of costs under section 45 or 48 of the Act, the
reviewer must allow those costs under the tariff
that were proper or reasonably necessary to conduct
the proceeding. |
[10] Section 4(6) of the
Tariff provides:
| (6)
|
If an
item in the tariff provides for maximum and minimum
numbers of units, the reviewer has the discretion
to allow a number within that range of units, and
must have regard to the following principles when
assessing costs: |
| |
(a) |
one
unit is for matters upon which little time should
ordinarily have been spent; |
| |
(b) |
the mid-point
of the range is for matters upon which an average
amount of time should ordinarily have been spent; |
| |
(c) |
the maximum number
of units is for matters upon which a great deal
of time should ordinarily have been spent. |
[11] The specific issues
include:
- whether the case, at this stage, warrants costs
above the mid-point of the Tariff ranges;
- reasonable hourly billing for business loss evaluation
services;
- entitlement to multiple preparation and hearing
units when interlocutory applications are heard together;
- entitlement to hearing preparation time when hearing
dates have been adjourned at the claimants' request
or by consent, and
- the effect of the interlocutory decision on the
claimants' entitlement to costs.
Bill of Costs
[12] The claimants' Bill
of Costs included three components from the commencement
of the claim to January 10, 2002:
| 1. |
Actual Bill of Costs |
$19,412.53 |
| 2. |
Tariffed Legal Bill
of Costs |
23,071.74 |
| 3. |
Tariffed Real Estate
Appraisal Costs |
18,069.86 |
| |
Total |
$60,554.13 |
During the hearing, the claimants
amended, added and deleted claims, as noted in the body
of this decision. They deleted claims for GST on all
three components. With the addition of the agrology
account during the cost hearing, as described below,
the Actual Bill of Costs totals $21,812.53 and the Total
of the three components becomes $62,954.13.
[13] In February 2001,
the claimants submitted a Bill of Costs which is identical
for some items to this the current Bill of Costs. In
response, the respondent reimbursed the claimants as
follows:
| 1. |
Actual Bill of Costs
(Slade Dyer & Associates account dated March
7, 2000, including GST) |
$
1,567.23 |
| 2. |
Tariffed Legal Bill
of Costs |
9,386.59 |
| 3. |
Tariffed Real Estate
Appraisal Costs |
12,765.56 |
| |
Total |
$23,719.38 |
The claimants acknowledge receipt
of the payment but indicate they did not understand
which items the payment covered. Therefore, they have
submitted the full Bill of Costs.
Actual Bill of Costs
[14] The claimants presented
the following accounts as non-Tariff items:
| Expert
fees: |
| 1. |
Slade
Dyer & Associates; account of March 7, 2000 |
|
| |
a) |
Fees |
$
1,457.50 |
|
| |
b) |
Disbursements |
7.70 |
|
| 2. |
Urban
Systems Ltd. account of January 10, 2002 |
|
| |
a) |
Fees |
3,085.00 |
|
| |
b) |
Disbursements |
211.50 |
|
| 3. |
KPMG
account dated February 7, 2002 |
|
| |
a) |
Fees |
11,000.00 |
|
| |
b) |
Disbursements |
250.00 |
|
| 4. |
Interwest
Property Services (1991) Ltd. Agrology services
-- Fees |
2,400.00 |
|
| Financing
fees: |
|
| 5. |
Mair
Jensen Blair account dated December 15, 1999 |
|
| |
a) |
Fees |
343.87 |
|
| |
b) |
Disbursements subject
to GST & PST |
20.00 |
|
| |
c) |
Disbursements subject
to GST |
121.67 |
|
| |
d) |
Non-taxable disbursements |
55.00 |
|
| Aerial
photo charges: |
|
| 6. |
Flight
Discovery Ltd. payment (which includes GST) |
168.31
|
|
| Travel
costs: |
|
| 7. |
110
km. return trip from Kamloops to Chase to meet with
counsel @ 40¢/km. on: |
|
| |
a) |
October 26, 1998 |
132.00 |
|
| |
b) |
May 13, 1999 |
132.00 |
|
| |
c) |
February 27, 2001 |
132.00 |
|
| |
|
|
|
|
|
|
Subtotal: |
|
$19,516.55 |
| Taxes: |
|
| 8. |
GST
at 7% on $16,893.24 |
|
1,182.53 |
| 9. |
PST
at 7% on $15,906.37 |
|
1,113.45 |
| |
|
|
|
| |
TOTAL: |
|
$21,812.53 |
[15] The claimants withdrew
the account for financing fees (#5. above) noting that
they might raise it in the s. 45 costs application.
[16] Of the remaining accounts,
the respondent disputed
| a) |
the Interwest Agrology account, |
| b) |
the KPMG account, and |
| c) |
the aerial photograph charge.
|
Interwest Agrology Account
[17] As noted above, the
claimants added this account to the Bill of Costs at
the hearing.
[18] Interwest Property
Services (1991) Ltd., produced, for the claimants, an
appraisal report signed by Danny R. Grant, dated October
29, 2001. The claimants submit that approximately 12
hours of the time billed for this report related to
ALR and agrology work. Mr. Grant's fees are billed at
$200 per hour, resulting in $2,400 fees for this account.
The claimants submit that the board has allowed similar
services as costs in Maddocks v. Surrey (City)
(2001), 73 L.C.R. 161, at para. 266.
[19] The agrology account
is supported by an affidavit from Mr. Grant and a copy
of his billing dated December 4, 2000. Concerning the
agrology work he attested that his services included
instructions and investigations regarding a livestock
underpass; assessment of the impact of the project on
the cattle and horse ranches; analysis of the agricultural
operations and the impact; and time spent with the respondent's
agrologist.
[20] The respondent objects
to an award being made at this time in the absence of
a breakdown of the account between the appraisal and
agrology work, time sheets, etc. The respondent notes
that it may be necessary to reduce some of the appraisal
costs since some agrology work is included in the appraisal
report.
[21] The first issue raised
by this part of the claim is whether non-appraisal work
done by a real estate appraiser in conjunction with
the appraisal assignment might be compensable outside
the real estate appraisal schedule in the Tariff. In
the Maddocks case, the board noted that non-appraisal
work might be compensated separately, but did not have
to decide the issue. In this hearing, the respondent
did not take exception to the claimants' submission
that non-appraisal work could be separately compensated.
In my view, there is no impediment to the general proposition.
[22] The next issue is
whether the work falls outside the scope of the appraisal
assignment. Again, the respondent did not take exception
to the claimants' general position. I accept that the
agrology services are outside the scope of the appraisal
work. However, in the absence of further details, it
is not clear to me that all of the work Mr. Grant outlined
falls within agrology rather than his appraisal assignment.
[23] A related issue is
the quantum of the account. In Mr. Grant's affidavit
he estimates 12 hours' work amounting to $2,400 out
of a total fee account of $14,280. He does not give
a breakdown by way of time sheets. The respondent did
not have advance notice of this claim and therefore
not much time to consider this aspect of the claim.
Mr. Grant's estimate is not precise and not supported
by other objective documentation. I find that the respondent's
concern about possible duplication of awards is well
taken. Given these factors, I find it reasonable to
award 50% of the amount claimed at this stage.
KPMG Account
[24] The claimants seek
reimbursement of an account from KPMG, for business
loss evaluation services, dated January 17, 2002, in
the amount of $11,000 for fees and $250 for disbursements.
The fees include 13.5 hours billed by L. Pellegrin at
$250 per hour and 50.1 hours billed by D. Bond at $155
per hour. The total hours, 63.6, are surcharged at $4
per hour to cover administrative overhead. The respondent
took issue with the hourly rate charged for L. Pellegrin,
but not for D. Bond, and with the administrative overhead
surcharge.
[25] In Glendale Trading
Ltd. v. British Columbia (Minister of Transportation
and Highways) (1998), 65 L.C.R. 50, the board reduced
Mr. Pellegrin's rates to $160 per hour noting that the
$200 per hour claimed was not supported by evidence
of his experience and qualifications, detailed accounts
or evidence of the "going rates" for chartered
accountants. In this hearing, the claimants submitted
Mr. Pellegrin's statement of professional qualifications
and experience, and detailed accounts.
[26] The respondent submitted
that the KPMG account is excessive and suggested a reasonable
amount would be half of the amount billed. The respondent
objected to claims for billings by both Mr. Pellegrin
and Mr. Bond and submitted that, when multiple experts
are being used, there has to be monitoring and reduction
to ensure that both are not billing for the same task.
In this case some of the time sheets indicated billing
overlap. The respondent referred to the board's handling
of multiple counsel and experts in its cost decision
in 415528 B.C. Ltd. v. Greater Vancouver Sewerage
& Drainage District (2001), 75 L.C.R. 217.
[27] The situation the
board was dealing with in the 415528 B.C. Ltd.
case is quite different than with this KPMG account.
In that case the board was considering separate legal
and appraisal accounts, both pre-Tariff and Tariff,
for two sets of counsel and appraisers. In this case,
the evidence suggests that the KPMG account represents
work done by a team. Therefore, although there are billings
for more than one person, it is not the same as the
duplicative work dealt with in the 415528 B.C. Ltd.
case.
[28] In the Glendale
case, the board was concerned about the hourly rate,
the expert's qualifications and experience, and the
nature and extent of the work billed. Other than clerical
time charges, Mr. Pellegrin's fees were the only ones
under consideration. I accept in the current billing
that KPMG delegated different aspects of the work to
members and employees with a variety of qualifications,
skills and experience. The claimants have requested
compensation for the fees of two members of the team.
The respondent has pointed to some overlap, such as
meetings that both attended and discussions between
the two that both billed, but has not otherwise challenged
the legitimacy of the work performed.
[29] In my view, team work
does not necessarily result in duplication but rather
offers an opportunity to improve efficiencies in both
work assignments and cost. I have reviewed the time
sheets and considered the respondent's submissions about
time billed by Mr. Pellegrin and Mr. Bond for meetings
and discussions. As I understand the evidence, they
have different roles on the team, both of which are
necessary to the final report. I am aware of the board's
concern in other costs decisions that it may not be
reasonable to allow separate billings for one professional
supervising another. However, in this case, I find that
Mr. Pellegrin's function was more than supervisory.
I find that the times billed do not amount to overlap
or duplication.
[30] Concerning the hourly
rate, it is apparent from reviewing Mr. Pellegrin's
qualifications that he is a partner in KPMG, has extensive
experience as a chartered accountant and a chartered
business valuator, and has appeared as an expert witness
in the B.C. Supreme Court and other venues. Without
doubt, his fees would be billed at the high end of the
range in his profession. The difficulty I have is that
I have not been given evidence of what the going rates
are for the profession. The evidence before me is his
billing at $250, and the board decision in 1998 which
reduced the 1997 fees from $200 to $160 per hour. I
have reviewed other board decisions and find that $250
per hour is in excess of what has been allowed for experts
or counsel. In the absence of market evidence, I am
not prepared to find that this hourly rate is reasonable.
Pending further evidence being presented at a section
45 final costs hearing, I find that fees of $190 per
hour are reasonable as reflective of a senior practitioner.
[31] The respondent also
objected to the KPMG administrative overhead charge
saying there was no explanation why it was necessary
or reasonable and submitting that it should be reduced
by one-half. In the Glendale case, the board
disallowed a claim for KPMG's clerical assistance based
on a rate of $50 per hour. It is apparent that KPMG
has altered its billing method since then to the current
surcharge of $4 per hour. I note that in the Bill of
Costs, this charge is referred to as "disbursements"
whereas in the invoice it is called "administrative
overhead." The board has held in many cases that
administrative overhead is not compensable separately;
it is covered in the fees. However, clearly, some disbursements
fall outside the scope of overhead and would be recoverable.
KPMG does not bill that way. Given that the respondent
has indicated that 50% of this bill is reasonable, I
accept that as a reasonable estimate of reasonable and
compensable disbursements.
Aerial Photograph Charges
[32] The claimants presented
a photocopy of a cancelled cheque, dated November 20,
1998, to Flight Discovery Ltd. in the amount of $168.31.
There is no notation on the cheque to confirm what the
payment is for. The claimants submit that the evidence
speaks for itself -- the cost was incurred. The respondent
objected to the aerial photograph charge because the
claimants had not yet provided particulars to support
the charge.
[33] It is well established
that an interim cost review by the board is a summary
process. The board has recognized that not every detail
need be disclosed. However, the board has also indicated
that it is to the claimants' benefit to provide some
reasonable indication that work has been performed and
the time expended. In this case, I find it would be
reasonable for the claimants to provide supporting evidence,
such as an invoice or letter, from the contractor, or
even the claimants, indicating what work was undertaken,
why and how it is relevant to the claim. Without that,
I find the claim is vague and uncertain. I disallow
the claim but acknowledge that the claimant may want
to pursue it in the final s. 45 costs review.
Taxes
[34] As detailed in the
summary of the award at the end of this decision, I
have found that the entitlement before PST is $16,812.70.
The claimants withdrew the GST billings. I have not
been able to discern what billings were included in
the PST account. Although PST is chargeable on legal
accounts, it is not chargeable for other professional
services. On the evidence before me, I am unable to
determine that any PST is payable on this portion of
the Bill of Costs.
Legal Tariff Account
[35] The following table
shows the units claimed, as amended, under each item
of description and the respondent's position, where
disputed:
| |
Item |
Units
Claimed
|
Maximum
Units
|
Respondent
Position
|
E.C.B. Decision
|
| 1 |
Correspondence, conferences,
etc. |
14 |
20
|
10
|
|
| 2 |
Reviewing and advising re: s.
3, where no agreement |
1 |
1 |
|
|
| 3 |
Reviewing and advising re: s.
20 payment |
2 |
2 |
|
|
| 4 |
Instructing expert witness,
etc. |
9
(amended) |
15 |
9 (amended)
|
|
| 5
|
Every process for commencing,
etc. claim
|
7 |
10 |
5 |
|
| 6 |
Process for obtaining discovery,
etc. of documents |
8 |
10 |
5 |
|
| 7 |
Process for giving discovery,
etc. of documents |
5 |
10 |
|
|
| 10 |
Preparation for examination
for discovery |
5 |
3 & 2
per person |
|
|
| 11 |
Attendance on examination for
discovery |
11 |
6 & 5
per person |
|
|
| 12 |
Preparation for application
referred to in Item 13, for each day of hearing |
(a) - (e), 7.5 |
Opposed,
3 per application
per day |
|
|
| 12(a) |
1.5 |
|
0 |
|
| 12(b) |
1.5 |
|
0 |
|
| 12(c) |
1.5 |
|
|
|
| 12(d) |
1.5 |
|
0 |
|
| 12(e) |
1.5 |
|
|
|
| 13 |
Interlocutory application
for each day |
12.5 |
Opposed,
5 per application
per day |
5 |
|
| 14 |
Preparation for attendance to
assess costs |
2 |
2 per day |
|
|
| 15 |
Attendance before board to assess
costs |
2 |
4 per day |
|
|
| 18 |
Preparation for hearing, if
claim set down, for each day of hearing, to a
maximum of 30 units |
30 |
30 |
0 |
|
| 21 |
Process for setting claim down
for hearing |
1 |
1 |
|
|
| 23 |
Travel by Solicitor, etc |
(a) - (d), 6 (amended) |
2 per day |
2 |
|
| 23(a) |
1 |
|
|
|
| 23(b) |
1 |
|
|
|
| 23(c) |
0
(amended) |
|
|
|
| 23(d) |
4 |
|
0 |
|
Summary
|
|
Claimants |
Respondent |
ECB Decision |
| Total Units |
123 |
60.5 |
|
| Unit value |
x $ 140.00 |
x $ 140.00 |
|
| Subtotal |
17,220.00 |
8,470.00 |
|
| 7% GST |
Deleted |
|
|
| 7% PST |
1,205.40 |
592.90 |
|
| Total |
$18,425.40 |
$9,062.90 |
|
Disbursements
[36] The total claim for
disbursements is $2,171.72, without the GST. Of this,
the respondents dispute the fax charges and counsel's
travel time:
| |
Claimants |
Respondent |
E.C.B. Decision |
| Faxes |
@ 35¢ $ 119.00 |
@ 20¢ $ 68.00 |
|
| Counsel Travel |
778.38 |
389.19 |
|
| Remainder |
1,274.34 |
1,274.34 |
|
| Total Disbursements |
$ 2,171.72 |
$ 1,731,53 |
|
[37] The discussion that
follows refers only to the Tariff items and disbursements
that are in dispute.
Items 1, 5 & 6
[38] The claimants' view
of the 'above-average' time consuming nature of this
case is discussed above. The claimants submitted an
affidavit from Krista Turner, legal secretary for Reinhard
Burke, counsel for the claimants, in support of the
contention that more than an average amount of time
has been required on this case for "correspondence,
conferences, instructions, investigations, etc. and
obtaining and reviewing the respondent's documents."
Additionally, the affidavit speaks to the chronology
of events in commencing and prosecuting the claim, and
to Mr. Burke having retained, instructed and received
advice from experts in appraisal, gravel, business loss
and agrology.
[39] For Items 1, 5 and
6, the respondent submits that mid-range units are appropriate
on a s. 48 review and referred to Ching Chan v. Vancouver
(City) (2001), 74 L.C.R. 68 at para. 10:
…the attempt should be made to minimize
over-compensation or under-compensation on an advance
cost award. The object of s. 48 is to allow a claimant
to pay its bills as they occur and therefore to continue
its claim; ….
[40] I have reviewed the
claimants' evidence, the various factors they point
to and the submissions of both parties. Although the
claimants say more than average counsel time has been
required, they have not provided supporting documentation,
such as time sheets. I am not satisfied that this case,
to date, has reasonably required more than average amount
of counsel time. I find that it is appropriate at this
stage to apply the mid-range of the Tariff for Items
1, 5 and 6, as suggested by the respondent.
November 1, 2001 Interlocutory
Application Costs Claimed, Items 12, 13, 23
[41] In the main, Items
12, 13 and 23(d) arise out of the November 1, 2001 interlocutory
application and decision, referred to above. The exception
is Item 12(e) which refers to the respondent's application
heard October 25, 2001 to cancel two summonses to witness.
[42] Under Item 12, the
claims are for ½ day entitlement for each of 5 applications,
for the total claimed, 7.5 units. Section 4(7)
of the Tariff allows for only ½ of the unit amount where
the time spent is less than 2 ½ hours. Under Item 13,
the claims are for ½ day entitlement, for 5 opposed
applications, for the total claimed, 12.5 units. Under
Item 23(d), the claim is 2 units for each of 2 travel
days.
[43] At paragraph 97 of
the decision on the November 1 applications, the Chair
stated:
In written submissions, the respondent
sought an order that the claimants be denied "the
costs of this day". Respondent's counsel did
not speak to the matter during the hearing of these
applications, nor did the claimants raise the matter
of costs. Success on the various applications was
divided. In these circumstances, I make no order as
to costs, pending a further application.
[44] The respondent submits
that as the Chair made no order for costs there is no
unit entitlement for Items 12, 13 or 23(d) for that
application unless and until there is a further order.
The claimant disagrees and submits there is no authority
to support the respondent's contention that the costs
are not recoverable. Rather, the claimants submit that
the respondent would have to make an application to
have the costs denied.
[45] I agree with the claimants.
To the extent that another application needed to be
made, this application is it. I find that the Chair's
reason for not making an order was simply because neither
party spoke to it, not due to any consideration of lack
of entitlement. The board's practice in dealing with
costs in interlocutory decisions which are not themselves
cost decisions was summarized by the Chair in an oral
decision, Captain's Square Holding Ltd. v. Her Majesty
the Queen in the Right of the Province of British Columbia
as represented by The Minister of Transportation and
Highways, unreported, March 16, 2001, E.C.B. No.
55/95. The Chair reviewed all the board's decisions
on interlocutory applications. He reported that there
have been almost no cases when the board in an interlocutory
decision has denied an owner costs of the application.
Additionally, in the majority of cases, the board has
either not mentioned costs or expressly made no order,
pending a further application. From this it is apparent
that the practice has developed of dealing with the
costs of interlocutory applications after the fact.
Accordingly, I will review the claims submitted under
these items.
[46] The respondent did
not make submissions on the substance of these claims.
I find it troubling that the claimants have claimed
separately under Item 13 for a number of applications
that were heard together. The result is 4 claims for
one hearing which lasted approximately 3 hours (see
paragraph 7 of the December 28, 2001 decision). I find
that common sense suggests it is duplicative to allow
the Item 13 claim as 4 separate hearings. However, I
think there is justification for allowing separate units
for applications by each party. Therefore, I find that
the entitlement for the respondent's application heard
on November 1, 2001 is ½ day, or 2.5 units; for the
claimants' 2 applications the entitlement is ½ day,
or 2.5 units, total. The claimants are entitled to a
separate award of 2.5 units for the October 25, 2001
application. In total, I award 7.5 units.
[47] Item 12 is a claim
for preparation for each of the applications. Under
this Tariff item, hearings of less than 2 ½ hours attract
entitlement of 1.5 units. I apply the same reasoning
and formula as in Item 13 to award a total of 4.5 units.
Hearing Preparation, Item 18
[48] The respondent submits
that units claimed under Item 18, hearing preparation
for cancelled days, should not be allowed because the
adjournments were with the consent, or at the request,
of the claimants. Additionally, given the adjournments
were well in advance of the hearing dates, no preparation
time should have been incurred and, in any event, there
is no objective evidence such as time sheets to support
the claim. Preparation units should be awarded only
when the hearing proceeds, or when the adjournment is
on the eve of the hearing commencement. The respondent
cited the 415528 B.C. Ltd. decision at para. 24:
Although I do not have much evidence
on the circumstances surrounding several of these
adjournments, it is likely that there was duplicative
work for which the respondent is not responsible.
[49] The claimants submit
that Tariff Item 18 does not refer to attendance or
commencement. The board should interpret the Tariff
similarly to the Supreme Court Rules, Appendix B, item
24, where costs have been allowed for trial preparation
where the action was adjourned by consent. In support,
the claimants cite Roesner v. Roesner, [1997]
B.C.J. No. 631, paras. 12-15.
[50] The Turner affidavit
speaks to Mr. Burke's estimate that he spent 2 days
in hearing preparation. The respondent submits that
the board should give little or no weight to the affidavit
from Ms. Turner, noting that it should have been from
Mr. Burke and that there is no objective measure or
time sheet to say Mr. Burke required or spent 2 days
in hearing preparation.
[51] I agree with the respondent
that early notice of the applications for adjournment
obviates some of the hearing preparation and that when
there are multi-adjournments there is the possibility
of duplicative work. I do not agree that no units should
be allowed. However, at this stage, I find that there
is no justification for awarding hearing preparation
units at the top end of the range, and minimal justification
for awarding units in the mid-range at this stage. I
allow 8 units.
[52] I have found that
the claimants are entitled to costs for the November
1, 2001 interlocutory applications. Therefore, the claimants
are entitled to the Item 23(d) claim of 4 units. Additionally,
the claimants are entitled to the undisputed claim for
a total of 2 units under Item 23(a) and (b) for solicitor's
travel to attend at examinations for discovery.
Disbursements
[53] The respondent disputed:
| a) |
the fax charges
at $.35 per page, citing 415528 B.C. Ltd.
above for the proposition that an appropriate charge
is $.20 per page, and |
| b) |
claimants' counsel's travel
expenses, $778.38, for the November 1, 2001 hearing,
citing the chair in not awarding costs (see discussion
above). |
[54] I am satisfied that
the bulk of the board's cases support fax charges at
a rate higher than $.20 and I find that $.35 per page
is reasonable.
[55] Concerning the travel
expenses, the respondent noted that if they are allowed,
they should be reduced to remove a travelling companion
and suggested dividing the bills by two. To deal with
them otherwise would be arbitrary. I have found that
the claimants are entitled to costs for the November
1, 2001 interlocutory applications. There is no suggestion
from the claimants that two people were required for
the hearings. Therefore, the charges for the additional
person should be removed, as the respondent suggests.
Having reviewed the receipts, I see that they total
$832.87, but are charged at only $778.38. It is apparent
that the additional person charges include the ferry
and hotel receipts. It appears to me that adequate reductions
have been made from the total receipts. I find this
account is reasonable.
Real Estate Appraisal Tariff
Account
[56] The following table
shows the units claimed and the respondent's position:
| |
Item |
Units Claimed |
Maximum Units |
Resp. position |
E.C.B. Decision |
| 1 |
Correspondence, conferences,
etc. |
13 |
20 |
10 |
|
| 2 |
Inspect and research subject
property |
20 |
30 |
15 |
|
| 3 |
Market research, etc. |
15 |
20 |
10 |
|
| 4 |
Inspection of comparable properties |
15 |
20 |
10 |
|
| 5 |
Analysis of data, etc |
45 |
60 |
30 |
|
6 |
Preparation for hearing, if
claim set down, for each day or necessary attendance
of appraiser, to a maximum of 30 units |
25 |
5 per day; max. 30 |
0 |
|
Summary
| |
Claimants |
Respondent |
ECB Decision |
| Total Units |
133 |
75 |
|
| Unit value |
x $ 100.00 |
x $ 100.00 |
|
| Subtotal |
13,300.00 |
7,500.00 |
|
| 7% GST |
Deleted |
|
|
| 7% PST |
931.00 |
525.00 |
|
| Total |
$14,231.00 |
$8,025.00 |
|
Disbursements
[57] The total claim for
disbursements is $2,708.58 (as amended), without the
GST. Of this, the respondents dispute the fax charges
and 'dividers, colour copies, report covers' ("supplies"):
| |
Claimants |
Respondent |
E.C.B. Decision |
| Faxes |
@ 35¢ $ 16.45 |
@ 20¢ $ 9.40 |
|
| Supplies |
397.25 |
.00 |
|
| Remainder |
2,294.88 |
2,294.88 |
|
| Total Disbursements |
$2,708.58 |
$ 2,304.28 |
|
The discussion that follows refers
only to the Tariff items and disbursements that are
in dispute.
Items 1 through 5
[58] As discussed above,
the claimants are of the view that this case has required
more than an average amount of time and this view is
reflected in the units claimed.
[59] The respondent referred
to Mr. Grant's appraisal report and noted that his competency
statement shows he has addressed similar issues in this
geographic area many times before which raises the question
of why this case would be considered as requiring above
average time. Additionally, the respondent questioned
his use of 24 comparables, compared to 6 by another
expert. In the receipts attached to Mr. Grant's affidavit,
his fees are not broken down, involvement of other staff
is not detailed, and one receipt is for accommodation
in the name of another person. Further, no time sheets
have been provided to support a claim of above average
time and there is no evidence attached to the Turner
affidavit of hearing preparation.
[60] I have reviewed the
claimants' appraisal evidence, the various factors they
point to and the submissions of both parties. I am not
satisfied that this case, to date, has reasonably required
more than an average amount of time. I find that it
is appropriate at this stage to apply the mid-range
of the Tariff for items 1 through 5, as suggested by
the respondent.
Item 6
[61] Tariff Item 6 states:
"preparation for hearing, if claim set down, for
each day of necessary attendance of appraiser, to a
maximum of 30 units."
[62] The claimants adopt
the same reasoning for this Tariff Item 6 as for the
Legal Tariff Item 18, as set out above, and say the
board should allow the claim despite the fact that the
hearing has not commenced.
[63] In my view this Tariff
item is intended to apply to time required to prepare
an appraiser for giving evidence and other preparation
related to hearing attendance. Item 5 allows for appraisal
report preparation. The board has allowed some Item
6 units for preparation time when the hearing was adjourned
on the last business day prior to the date set for hearing
commencement: Reon Management Services Inc. v. British
Columbia (2001), 72 L.C.R. 257, at para. 145. In
the present case, the hearing was adjourned well in
advance of the scheduled date and may still proceed.
I am not persuaded by the claimants' submissions that
this item should be applied in advance of the hearing,
given that the keys to this entitlement are preparation
for hearing and necessary attendance of appraiser.
If a hearing does not proceed, it is possible that the
appraiser would not have expended any time for hearing
preparation.
Taxes
[64] The claimants withdrew
the GST billings. Both the claimants and respondent
allowed 7% PST on the tariff account. Given that PST
is not chargeable for professional services other than
legal accounts, I find that PST is not payable on an
award under the Real Estate Appraisal Tariff.
Disbursements
[65] The Claimants included
fax charges at $.50 per page, which they reduced to
$.35 per page during the hearing.
[66] The respondent disputed:
| a) |
the fax charges, as above,
and |
| b) |
the claims for dividers, colour
copies and report covers ($397.25). |
As noted above, I find that $.35 per
page for fax charges is reasonable.
[67] The respondent did
not elaborate on reasons for objecting to the other
items. In my view, these are standard disbursements
associated with report production and I see no justification
for disentitling the claimants.
Decision Summary
Actual Bill of Costs
[68] The following sets
out the summary of the board's award on each item, including
those upon which the parties are agreed, those which
the respondent has previously paid, and those to which
the respondent took no objection in this hearing:
| Expert fees: |
| 1. |
Slade Dyer & Associates;
account of March 7, 2000 |
| |
a) |
Fees |
$ 1,457.50 |
| |
b) |
Disbursements |
7.70
|
| 2. |
Urban Systems Ltd. account of
January 10, 2002 |
| |
a) |
Fees |
$ 3,085.00 |
| |
b) |
Disbursements |
211.50 |
| 3. |
KPMG account dated February
7, 2002 |
| |
a) |
Fees |
$ 10,330.00 |
| |
b) |
Disbursements |
125.00 |
| 4. |
Interwest Property
Services (1991) Ltd., Agrology services |
| |
|
Fees |
$ 1,200.00 |
| Financing Fees: |
| 5. |
Mair Jensen Blair account dated
December 15, 1999 |
deleted |
| Aerial photo charges: |
| 6. |
Flight Discovery
Ltd. payment (which includes GST) |
$ .00 |
| Travel costs: |
| 7. |
110 km. Return trip
from Kamloops to Chase to meet with counsel @ 40¢/km.
on: |
| |
a) |
October 26, 1998 |
$ 132.00 |
| |
b) |
May 13, 1999 |
132.00 |
| |
c) |
February 27, 2001 |
132.00 |
| |
|
Subtotal |
$16,812.70 |
| Taxes: |
| 8. |
GST at 7% on $16,893.24 |
deleted |
| |
PST at 7% |
disallowed |
| |
TOTAL |
$ 16,812.70 |
Legal Tariff Account
| |
Item |
Units
Claimed |
Maximum
Units |
Resp.
Position |
E.C.B.Decision |
| 1 |
Correspondence,
conferences, etc. |
14 |
20 |
10 |
10 |
| 2 |
Reviewing and advising
re: s. 3, where no agreement |
1 |
1 |
|
1 |
| 3 |
Reviewing and advising
re: s. 20 payment |
2 |
2 |
|
2 |
| 4 |
Instructing expert
witness, etc. |
9
(amended) |
15 |
9
(amended) |
9 |
| 5 |
Every process for
commencing, etc. claim |
7 |
10 |
5 |
5 |
| 6 |
Process for obtaining
discovery, etc. of documents |
8 |
10 |
5 |
5 |
| 7 |
Process for giving
discovery, etc. of documents |
5 |
10 |
|
5 |
| 10 |
Preparation for
examination for discovery |
5 |
3 & 2 per person |
|
5 |
| 11 |
Attendance on examination
for discovery |
11 |
6 & 5 per person |
|
11 |
| 12 |
Preparation for
application referred to in Item 13, for each day
of hearing |
(a) - (e), 7.5 |
Opposed, 3 per application per day |
|
4.5 |
| |
12(a) |
1.5 |
|
0 |
[1.5] |
| |
12(b) |
1.5 |
|
0 |
[1.5] |
| |
12(c) |
1.5 |
|
|
[Included] |
| |
12(d) |
1.5 |
|
0 |
[Included]
|
| |
12(e) |
1.5 |
|
|
[1.5] |
| 13 |
Interlocutory application for
each day |
12.5 |
Opposed, 5 per application
per day |
5 |
7.5 |
| 14 |
Preparation for attendance
to assess costs |
2 |
2 per day |
|
2 |
| 15 |
Attendance before board to
assess costs |
2 |
4 per day |
|
2 |
| 18 |
Preparation for hearing, if
claim set down, for each day of hearing, to a
maximum of 30 units |
30 |
30 |
0 |
8 |
| 21 |
Process for setting claim down
for hearing |
1 |
1 |
|
1 |
| 23 |
Travel by Solicitor, etc |
(a) - (d), 6 (amended) |
2 per day |
2 |
6 |
| |
23(a) |
1 |
|
1 |
[1] |
| |
23(b) |
1 |
|
1 |
[1] |
| |
23(c) |
0
(amended) |
|
|
|
| |
23(d) |
4 |
|
0 |
[4] |
Summary
| |
Claimants |
Respondent |
ECB Decision |
| Total Units |
123 |
60.5 |
84 |
| Unit value |
x $ 140.00 |
x $ 140.00 |
x $ 140.00 |
| Subtotal |
17,220.00 |
8,470.00 |
11,760.00 |
| 7% GST |
Deleted |
|
|
| 7% PST |
1,205.40 |
592.90 |
8123.20 |
| Total |
$18,425.40 |
$9,062.90 |
$ 12,583.20 |
Disbursements
| |
Claimants |
Respondent |
E.C.B. Decision |
| Faxes |
@35¢ $ 119.00 |
@ 20¢ $ 68.00 |
@ 35¢ $ 119.00 |
| Counsel Travel |
778.38 |
389.19 |
778.38 |
| Remainder |
1,274.34 |
1,274.34 |
1,274.34 |
| Total Disbursements |
$ 2,171.72 |
$1,731,53 |
$2,171.72 |
Real Estate Appraisal Tariff Account
| |
Item |
Units Claimed |
Maximum Units |
Respondent Position |
E.C.B. Decision |
| 1 |
Correspondence, conferences,
etc. |
13 |
20 |
10 |
10 |
| 2 |
Inspect and research subject
property |
20 |
30 |
15 |
15 |
| 3 |
Market research, etc. |
15 |
20 |
10 |
10 |
| 4 |
Inspection of comparable properties |
15 |
20 |
10 |
10 |
| 5 |
Analysis of data, etc |
45 |
60 |
30 |
30 |
| 6 |
Preparation for hearing, if
claim set down, for each day or necessary attendance
of appraiser, to a maximum of 30 units |
25 |
5 per day; max. 30 |
0 |
0 |
Summary
| |
Claimants |
Respondent |
ECB Decision |
| Total Units |
133 |
75 |
75 |
| Unit value |
x $ 100.00 |
x $ 100.00 |
x $ 100.00 |
| Subtotal |
13,300.00 |
7,500.00 |
7,500.00 |
| 7% GST |
Deleted |
|
|
| 7% PST |
931.00 |
525.90 |
|
| Total |
$14,231.00 |
$8,025.00 |
$7,500.00 |
Disbursements
| |
Claimants |
Respondent |
E.C.B. Decision |
| Faxes |
@35¢ $ 16.45 |
@ 20¢ $ 9.40 |
@ 35¢ $ 16.45 |
| Supplies |
397.25 |
.00 |
397.25 |
| Remainder |
2,294.88 |
2,294.88 |
2,294.88 |
| Total Disbursements |
$ 2,708.58 |
$ 2,304.28 |
$ 2,708.58 |
Final Summary
| |
Claimants |
ECB Decision,
incl. Disburs. |
Paid |
Owing |
| Actual Bill of Costs |
$21,812.53 |
$16,812.70 |
$ 1,567.23 |
|
| Legal Tariff Costs |
23,071.74 |
14,754.92 |
9,386.59 |
|
| Appraisal Tariff Costs |
18,069.86 |
10,208.58 |
*12,765.56 |
|
| Total |
$62,954.13 |
$41,776.20 |
$23,719.38 |
$18,056.82 |
* I did not receive particulars
on how this amount had been calculated. The fact that
it exceeds the amount awarded to date is not of great
concern as this can be adjusted with subsequent costs.
|