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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.

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