Tariff Costs

March 21, 2001 ECB Control No.: 30/93/203 (73 L.C.R. 129), 31/93/203, 32/93/203

REASONS FOR DECISION

1.  APPLICATION

[1] The three sets of claimants, the Inghams, the Jamiesons and Mr. Kowalski have each applied for their costs pursuant to section 45 of the Expropriation Act, R.S.B.C. 1996, c. 125 ("the Act") for an earlier section 45 cost hearing for which reasons were released on May 16, 2000. See 69 L.C.R. 263. In addition, the Inghams and Mr. Kowalski seek their costs pursuant to section 45 arising out of a rehearing of part of the compensation claim as ordered by the Court of Appeal. Reasons in this rehearing were released on July 28, 2000. See 70 L.C.R. 126.

[2] The first application is for work done prior to June 28, 1999 and is therefore prior to depositing of the Tariff of Costs Regulation, B.C. Reg. 189/99 ("the Tariff"). All of the costs claimed relate to a section 45 cost hearing conducted over three days in Cranbrook, British Columbia. In addition to the legal account addressed to all three sets of claimants, there are accounts from five witnesses who attended the cost hearing, either in person or by telephone.

[3] The second application is for work done after June 28, 1999 and is therefore under the Tariff. The decision on the reconsideration hearing dated July 28, 2000 gives the claimants their costs at Scale 2. The parties settled the two Bills of Costs for the legal costs prior to the commencement of this hearing and therefore it is only the two Bills of Costs for the real estate appraisal costs that remain outstanding.

[4] The lengthy background in this matter is set out in the initial section 45 cost decision dated May 16, 2000 (69 L.C.R. 263). It involves a street widening by the respondent, the town of Creston, in which a 16.5 foot strip was expropriated from the front yards of each of the three claimants' premises. It is sufficient for the purposes of this review to say that there were two expropriations, the first of which resulted in a consent order declaring the expropriation to be a nullity. I conducted the hearing of these two applications in my capacity as vice-chair, exercising the powers and jurisdiction of the chair under section 26(6) of the Act.

2.  COSTS FOR COST HEARING

2.1 Introduction

[5] Burke Frame submitted one account dated July 16, 1999 to all three claimants for legal services at the initial section 45 cost hearing in Cranbrook, British Columbia in June 1999. A total of 1.7 hours at $225 an hour or $382.50 was attributed to Reinhard Burke, counsel at the initial compensation hearing. The time sheets record 111.45 hours for Lisa McBain. At her hourly rate of $110 this comes to $12,215.50. However, she reduced her time to 69.25 hours which was billed at $7,617 for a total fee for services (including Mr. Burke's time) of $8,000. Disbursements were billed at $2,755.97 and with the applicable taxes the final account was $12,068.89, with one third or $4,022.96 payable by each claimant. I note that the Bill of Costs prepared by claimants' counsel was lower than the actual account because it omitted the PST on the legal fees. I have used the actual account and included the PST. Thus the legal fees can be set out as follows:

		Fees	Disb	Taxes	Total
1.	Burke Frame, 1999	$ 8,000	$2,755.97	$1,312.92	$12,068.89

[6] In addition, accounts were submitted from the various witnesses at the cost hearing as follows:

		Fees	Disb	Taxes	Total
2.	Graham Temple	$ 437.50	$ 68.46	$ 61.26	$ 567.22
3.	Interwest	$1,535.00	$425.76	$137.25	$ 2,098.01
4.	Don Niedermayer		$ 50.00		$ 50.00
5.	Herb Legg		$43.38		$ 43.38
6.	Finn Transportation	$ 571.25	$ 17.60	$ 41.22	$    630.07
	Sub-total				$ 3,388.68
	Total				$15,457.57

I note that the amounts claimed on the Bill of Costs for two of these witnesses were different than the amounts shown above. I have used the actual accounts rather than the amount on the Bill of Costs for Graham Temple and Herb Legg since it appears that the Bill of Costs was in error, omitting a disbursement of $65 on the one account, and coming to a different total on the other, perhaps as a result of omitting the PST on the disbursements. The total of $15,457.57 was claimed collectively with one third or $5,152.53 for each claimant.

[7] Mr. Niedermayer was the first lawyer acting for the claimants. He retained Finn Transportation, a transportation engineering firm based in Calgary, to review Creston's plans for expropriation with respect to safety concerns. When a dispute arose between the claimants and Mr. Niedermayer, the claimants consulted Mr. Temple, a lawyer in Creston, who referred them to their present lawyer Mr. Burke. Mr. Temple assisted Mr. Burke in bringing his petition challenging the validity of Creston's first expropriation. He was able to see the claimants in order to swear affidavits and file documents at the Court Registry, since Mr. Temple was in Creston and Mr. Burke was not. Mr. Legg was a son of friends of the claimants with some communications experience. His role was in part as a letter writer to the media and politicians to try and stop the expropriation and in part as a spokesperson for the claimants in the initial stages when they were dealing with the first lawyer Mr. Niedermayer. I refer the reader to the initial section 45 cost decision at 69 L.C.R. 263 for a more detailed description of the initial accounts for each of these witnesses.

[8] There was also an additional account from Burke Frame for Mr. Kowalski, dated July 23, 1996. This account had been overlooked in the initial section 45 cost review in June 1999. It claimed $425 in fees, $188.78 in disbursements plus taxes for a total of $677.44.

[9] As a result of the initial section 45 cost hearing held in Cranbrook, British Columbia, each of the three claimants was allowed $616.10 of the $8,882.80 in costs claimed for the first expropriation. With respect to the second expropriation, the Inghams were allowed $16,226.64 of the $19,129.85 costs claimed, the Jamiesons were allowed $12,544.77 of the $14,676.18 costs claimed and Mr. Kowalski was allowed $12,212.64 of the $14,272.15 claimed.

2.2 Issue

[10] The primary issue with respect to the costs for the initial section 45 cost hearing was the reasonableness of the costs expended on pursuing the costs for the first expropriation.

2.3 Factors to be considered

[11] In considering the costs to be awarded I must consider the factors set out in section 45(10) of the Act:

45 (10)	In a determination of costs under subsection (8) or (9), the following considerations must be taken into account:
	(a)	the number and complexity of the issues;
	(b)	the degree of success, taking into account
		(i) the determination of the issues, and
		(ii) the difference between the amount awarded and the advance payment under section 20 (1) and (12) or otherwise;
	(c)	the manner in which the case was prepared and conducted.

[12] There were a number of issues at the initial cost hearing. First of all there was a jurisdiction issue since the original compensation decision had been appealed and referred back to the board. There were then the costs for the two expropriations.

[13] For the first expropriation, there were a total of five accounts to be considered. In addition to Mrs. Ingham, four witnesses were called in relation to these accounts, and there was one affidavit. Creston pointed out that most of Ms. McBain's time on the legal account appeared to be with respect to the witnesses for the first expropriation. In addition, most of the time at the three day cost hearing had also been spent on the first expropriation. All of these accounts, but for that of Mr. Legg, were relatively small, ranging from $80 per claimant to $1,500. The accounts was somewhat unusual and had to be considered separately as to whether they were necessarily incurred for the purpose of asserting a claim for compensation and whether they were reasonable. However, the evidence that was adduced for each account was relatively straightforward - the person's hourly rate, the basis for their hourly rate, and some amplification of the services that were provided. There was little that could not have been covered in an affidavit. In relation to the first expropriation, therefore, there were several different claims, although the evidence and the submissions with respect to these were not complex.

[14] There were two accounts related to the second expropriation, which were the typical costs for an appraiser and legal counsel. There was one witness, Mr. Grant, who gave evidence in relation to the appraisal account. The primary issue at the initial cost hearing for both accounts was the global reasonableness of the size of the accounts compared to the amounts of compensation awarded. Creston observed that the time occupied by these costs at the hearing and on Ms. McBain's time sheets was relatively minor. Thus, the number and complexity of the issues with respect to the costs for the second expropriation were minimal.

[15] The claimants were substantially successful with respect to the costs of the second expropriation, recovering approximately 85% of both the legal and appraisal accounts. However, they only obtained approximately seven percent of the costs of the first expropriation. Creston submitted that it was unreasonable for the claimants to have expended so much time and expense on the costs of the first expropriation when most of these accounts were so problematic, a fact that should have been evident prior to the hearing. If the witnesses for the first expropriation had not been called, then the hearing could have been held in half a day by teleconference instead of over three days in Cranbrook. The claimants' position was that the costs were reasonable because the work had been done by a junior lawyer at $110 an hour and the time had already been reduced 50%. (In fact the hours and professional fees were cut by approximately 36%.)

[16] The claimants' case was presented with considerable thoroughness. However, Creston said that the total costs were unreasonable and referred me to a number of cases on the issue of global reasonableness for the costs of a cost hearing. In two early cases, Nygard v. Surrey (District) (No. 2) (1989), 42 L.C.R. 279 (B.C.E.C.B.) and Gerestein v. District of Abbotsford (No. 2) (1990), 43 L.C.R. 262 (B.C.E.C.B.) costs for three and four hour cost hearings respectively plus preparation time and travel time were allowed at approximately $1,200. In Tidmarsh v. Comox-Strathcona (Regional District) (1994), 54 L.C.R. 13 (B.C.E.C.B.) $1,850 was allowed for counsel fees to attend the cost hearing plus reasonable travel costs. In the case that Creston submits has the most similarities to the present one, McKinnon v. School District No. 36 (Surrey) (1997), 61 L.C.R. 9 (B.C.E.C.B.), the costs for preparation time plus a full day hearing time and two part days hearing time were allowed at $2,000 including taxes and disbursements. In Buchanan v. School District No. 36 (Surrey) (1997), 61 L.C.R. 288 (B.C.E.C.B.) $1,200 all in was allowed for costs for a one day cost hearing in which the claimants had not achieved great success. Finally, in Branscombe v. Minister of Transportation and Highways (No. 3) (1995), 56 L.C.R. 138 (B.C.E.C.B.), in which the cost decision specifically dealt with a section 45 cost hearing, the legal costs of a one day cost hearing claimed at approximately $13,000 were allowed at $6,055 for a total of 48 hours of work plus taxes.

2.4 Analysis

[17] The legal account from Burke Frame was for a total of $12,068.89, with the fee portion being $8,000 for 71 hours of work (reduced from 112 hours).

[18] I recognize that this file did present a number of different claims for costs, although none of them was complex. As Creston indicated it appears that the majority of the time on the time sheets and at the hearing was spent on the claims related to the first expropriation and these claims have been found to be almost entirely unsuccessful. Nothing was allowed for the accounts of the planner and engineer, Finn Transportation and Walker Brown, on the basis that the services were unreasonable at the time that they were incurred. Nothing was allowed for the account of Mr. Legg on the basis that when he was paid there was no legal obligation on the claimants to pay him, as well as on the fact that some of his services were redundant and that his account was unreasonable. The two legal accounts were only marginally successful (17% of the Temple account was recovered and 36% of the Niedermayer account was recovered). Thus, a very significant portion of the legal time that has been billed was spent on five claims that were largely unsuccessful.

[19] In addition, four of the five accounts were relatively small at approximately $80 per claimant, $300 per claimant, $955 per claimant and $1,550 per claimant. Leaving aside Mr. Legg's account for the moment, this means that a significant portion of the $8,000 in legal time that has been billed was spent seeking claims totalling $2,885 per claimant or $8,655 for all three. The $8,000 in legal fees does not include the money claimed for disbursements related to these accounts or the accounts submitted by the witness for these accounts, both of which are considered separately below.

[20] The board on several occasions has commented on the question of proportionality when considering the legal costs incurred. On the one hand in Tidmarsh, where the fees being sought exceeded the additional compensation being sought, the former Chair, Jeanne Harvey, stated that the amount being sought for compensation did not warrant the time billed. Similarly, in Kliman v. Board of School Trustees, District No. 63 (Saanich) (1992), 48 L.C.R. 204 (B.C.E.C.B.) the former Vice Chair, Cliff Watt Q.C. stated at p. 209 " ...a compensation scheme where costs that frequently approach or exceed the amount involved is a scheme that will inevitably attract criticism." On the other hand in Underhill v. Pemberton Valley Dyking District (1997), 62 L.C.R. 272 (B.C.E.C.B.) the Chair, Robert Shorthouse, observed at 279:

I also accept the claimant's argument, up to a point, that time spent by counsel to obtain what turns out to be modest compensation could be reasonable in all of the circumstances even though the resulting fee charges approach or perhaps surpass the compensation amount."

All of these comments are consistent with the view that while a person whose land has been expropriated or partially expropriated is entitled to be paid costs that are proper or reasonably necessary to conduct a proceeding, one of the factors in assessing reasonableness is the amount involved in relation to the costs being claimed. Where claims are relatively small, claimant's counsel ought to take that into consideration in choosing the manner in which it will advance the claim. Claims cannot reasonably be pursued with little or no regard to the amount involved.

[21] I also note that the board has held that the authority should not have to pay where there is a duplication of effort by different counsel within the same law firm. See Gerestein v. District of Abbotsford (No. 2) (1990), 43 L.C.R. 262 (B.C.E.C.B.). Clearly Ms. McBain in taking over the cost hearing for a compensation claim with which she was unfamiliar spent some time in getting up to speed on this file. In addition, although I realize that junior counsel's lower hourly rate takes into account their relative inexperience, in my opinion, after reviewing the account, there has been some over preparation in this matter. Indeed Ms. McBain conceded that there may have been some time spent in a learning curve and over preparation but submitted that her reduction in hours was sufficient to deal with these factors.

[22] The disbursements claimed on the Burke Frame account dated July 16, 1999 total $2,755.97. Creston objected to several of the disbursements. The first objection was that the disbursements for photocopying and faxes are billed at higher levels than the amounts normally allowed by the board. In a similar manner to the initial section 45 cost decision at 69 L.C.R. 263 at par 67 I reduce the photocopying from $.35 per page to $.15 and the faxes from the flat rate of $5.00 per fax to an assumed average of 4 pages per fax at $.35 per page. Creston also took issue with the mileage charged by Ms. McBain of $.40/km and suggested that it should be $.30/km. I do not agree that this mileage claim is unreasonable. I also note that $544.04 was charged as part of the travel expenses for telephone and faxes from the hotel to Mr. Niedermayer, Mr. Temple and Mr. Finn. The bulk of this expense was for communication with Mr. Niedermayer in Mexico at $463.49. This is in addition to a number of telephone calls, faxes and e-mails involving Mr. Niedermayer that are indicated in the Burke Frame account prior to arriving in Cranbrook for the hearing. Mr. Niedermayer attended at the hearing by telephone. As indicated above his account was substantially reduced and eventually allowed at $562.64 including disbursements and taxes for each of the three claimants. I appreciate that Mr. Niedermayer was residing in Mexico and that the expenses for counsel to telephone him prior to the hearing and to fax him copies of his accounts from the hotel were in fact incurred. In my view, it appears that there was little consideration given to the question of overall reasonableness in incurring disbursements of this magnitude to attempt to recover total accounts of $1,550 for each of the three claimants.

[23] Before I finally determine how much to allow for the Burke Frame account, I am going to consider four of the witness accounts for their costs in relation to attendance at the section 45 cost hearing, since the incurring of these accounts is relevant to the legal account. There was no objection to the first lawyer, Mr. Niedermayer's, request for reimbursement of $50.00 for long distance telephone calls and therefore that amount for Mr. Niedermayer is allowed. Creston objected to the second lawyer, Mr. Temple's, account at $567.22 being so much higher than the costs allowed for his earlier accounts at $53.50 per claimant or $160.50 for all three claimants. In my opinion, it is even more noteworthy that the total amount sought for Mr. Temple's accounts at the earlier cost hearing was approximately $300 for each claimant or $900 in total. One of the reasons that only 17% of this approximately $900 was recovered was because much of Mr. Temple's services were related to the Supreme Court petition that resulted in the first expropriation being declared a nullity and this work was outside the board's jurisdiction. I understand that for the initial cost hearing Mr. Temple travelled to Cranbrook from Creston, a distance of over 100 km each way, waited for some time to be called and then provided evidence at the hearing. Given what he did, his account is very reasonable. However, the issue that I must decide is whether the cost of incurring Mr. Temple to do this was necessary or reasonable in all the circumstances. In my view, incurring costs of $567.22 from Mr. Temple to recover a maximum of $900 was not reasonable or necessary; this is especially true when much of what Mr. Temple had done leading to the $900 account was not within the board's jurisdiction and therefore was unlikely to be allowed. In my opinion, his evidence could have been advanced by affidavit. While I allow Mr. Temple's account at $500, I will take into account in considering the Burke Frame account that some costs that I have found to be unreasonable and unnecessary have been incurred at the behest of the law firm.

[24] Creston submitted that nothing should be allowed for either Mr. Legg's account or Finn Transportation's account when the claimants had recovered nothing and when the problems with these accounts should have been apparent prior to the hearing. The initial account from Finn Transportation sought at the cost hearing was approximately $955 for each claimant or $2,865 in total. I allowed nothing for this account at the initial cost hearing because at the time that it was incurred it was unnecessary. The claimant had initially arranged to have Mr. Finn fly from Calgary to Cranbrook to give evidence at the cost review, however, at the board's suggestion he gave evidence by telephone and has submitted an account of $630.07. Again there is no issue as to the time actually spent by Mr. Finn. In addition to the claimants' lack of success with respect to Finn Transportation's account, there is a question of reasonableness in incurring expenses of this degree (which would have been much higher if Mr. Finn had flown to Cranbrook) to seek recovery for accounts of $955 for each claimant for work that presented difficulties for recovery under the Act. Having heard Mr. Finn I am not certain that there was anything in his evidence that was of assistance to me that could not have been put in an affidavit. While I allow Finn Transportation's account at $550, I will take into account in considering the Burke Frame account that some costs that I have found to be unreasonable and unnecessary have been incurred. With respect to Mr. Legg's initial account, it was substantial at $6,000 per claimant or $18,000 in total. Although I did not allow any of Mr. Legg's initial account, he has only billed a modest amount for disbursements for the cost hearing and in the circumstances this amount of $43.38 is allowed.

[25] In summary, a number of factors have been considered in relation to the Burke Frame account. These include the degree of success on both expropriations, the relative size of four of the five accounts for the first expropriation, the duplication of effort, some over preparation, the over billing of photocopies and faxes, and the incurring of some unreasonable and unnecessary expenses in relation to the witnesses. I also recognize the fact that the original account had already been reduced. I allow the Burke Frame account at $7,500 inclusive of disbursements, and taxes.

[26] There is also the additional Burke Frame legal account to Mr. Kowalski dated July 23, 1996 for $677.44. This account was not attached to any affidavit but in the circumstances I will consider it. Creston pointed out that there was a disbursement on the account for $140 for a court filing fee which appeared to be for filing the Notice of Appeal of the first compensation hearing in the Court of Appeal. This board has no jurisdiction with respect to costs in the Court of Appeal. See Cejka v Cariboo Regional District (1995), 56 L.C.R. 122 (B.C.E.C.B.). Further, two of the six activities that are detailed as the legal services also appear to be with respect to the appeal of the decision in the first compensation hearing. I do not have the back up time sheets for this account so I do not know how much time was expended on these two items. However, I have no jurisdiction with respect to these costs. In addition, in the reasons for the first section 45 cost hearing dated May 16, 2000, I reduced the legal fees of Burke Frame between 20 and 25% primarily on the basis of overall reasonableness between the costs claimed and the net amount awarded. This reasoning would have also applied to the Kowalski account if it had been included in that hearing. With respect to the disbursements, I do not have the back up documentation but it seems very probable that the photocopying was billed at the same rate as set out above and therefore it should be reduced accordingly. In addition to the filing fee related to Court of Appeal, the agent's fee to attend at the Court Registry is outside the board's jurisdiction. Some of the general disbursements for photocopies, postage, courier and long distance telephone must also relate to the appeal and reporting on the appeal to Mr. Kowalski. In the final result, having made some reduction to the fees and disbursements that are related to the Court of Appeal and having made a similar reduction in the fees as in the May 16, 2000 decision I allow $300 including disbursements and taxes.

[27] With respect to the account from Interwest there were some evidentiary difficulties. There was evidence of an account from Interwest for $2,098.01 dated May 19, 1999 (attached as an exhibit to the affidavit of Ms. McBain) with respect to the cost hearing. This account says on its face that it is a revised invoice. The difficulty with this account is that the travel time and the time spent at the hearing occurred two weeks after the date of the account, on June 2 and 3, 1999. The correct dates are set out in the client billing worksheet that was also attached. There was also evidence of an account from Interwest for $5,569.11 with the same invoice number dated November 12, 1999 (attached as an exhibit to the affidavit of Mr. Burke). The client billing worksheet that is attached lists the same services and disbursements that were listed on the earlier invoice and client billing worksheet, but it also includes Interwest's time and disbursement related to the reconsideration hearing. In other words the $2,098.01 in the first invoice is also included as part of the $5,569.11 listed in the second invoice. However the client billing worksheet that is attached to the later account now lists May 28, 1999 as the dates for the services associated with the cost hearing rather than June 2 and 3, 1999, when they in fact occurred.

[28] While none of these discrepancies has any effect on the amounts claimed, I do have some concerns. First, the bill appears to have been backdated (since it could not have been dated on May 19, 1999 as the work had not yet been done) and the account purports to charge for interest on overdue accounts. As I indicate below I cannot understand the calculations for interest on the account for this work that are claimed in this hearing. Second, I also have concern that there appear to have been changes made to the back up documentation accompanying the second invoice given that the board relies on this back up documentation kept by the firm as evidence. Finally, when there are two invoices with different dates in which $2,098.01 is overlapping I have some concern about the potential for claimants being inadvertently billed twice. It is true that there was no confusion at the hearing about the total amount being claimed. It is also true that the two accounts bear the same invoice number and the first account may be a replacement account extracted from the later account when a cost hearing dealing only with the initial cost hearing was being prepared. The accounts themselves provide no indication about the dates on which services were provided so that it would be difficult for a reader to know that the two accounts contain overlapping work unless the client billing worksheets were provided as well.

[29] Turning to the substance of the Interwest claim, Creston submitted that the principle of overall global reasonableness supported a reduction in this account of $2,098.01. Mr. Grant attended in Cranbrook and has charged half his expenses and half his travel time since he was able to do other work while he was there. He has billed a total of six hours at $200 an hour for preparation for the hearing as well as waiting time and the actual attendance at the hearing. Another appraiser in his office has billed one hour at $135 an hour for cost reviews and other material for the hearing. The claimants were substantially successful with respect to Interwest's accounts of approximately $4,800 for each claimant or $14,500 in total, which were allowed at approximately 85%. Creston has conceded that in the circumstances it was probably reasonable to call Mr. Grant but if he had attended by teleconference the costs for his time and disbursements would have been significantly less. I would note that I did not find Mr. Grant's evidence at the hearing contributed anything useful that could not have been put in an affidavit. However, after reviewing all of the factors, including the fact that Interwest has been able to halve the travel expenses, I allow Interwest's total account at $1,700 inclusive of disbursements and taxes.

[30] While it was not listed on the Bill of Costs there was a claim for interest of $501.19 claimed on Interwest's account. There was evidence of an account from Interwest dated July 12, 2000 setting out $611.64 in accrued interest on the outstanding balance of $5,569.11 for the account dated November 12, 1999 and adding another month's interest of $92.69. The claimants conceded that $3,471.10 of the $5,569.11 of this outstanding account was for work and disbursements after the Tariff and therefore under section 5(6) of the Tariff no claim for interest can be made for this sum. This leaves $2,098.01 of the outstanding balance for work and disbursements done before the Tariff. The claimants submitted that the proportion of interest applicable to this $2,098.01 was $501.19. I calculate the proportion of total interest of $704.33 listed on the July 12, 2000 account that is applicable to the $2,098.01 to be $265.34 (assuming a common billing date of November 12, 1999) so I do not understand how the claimants calculated $501.19 by July 31, 2000. In any event, Creston submitted that it was not provided with Interwest's account for interest until it received Mr. Burke's affidavit sworn September 29, 2000, two weeks before the cost hearing. In such circumstances, it claims no interest can be claimed. As a result the claimants conceded its claim for interest.

[31] I note that in Daflos v School District #42 (Maple Ridge), unreported, ECB # 39/94/202, February 16, 2001, the Chair raised the issue at par 78 of whether any interest can be charged for professional services done before the Tariff came into effect but not billed until after the Tariff came into force. In the present case it is not clear when the work for the cost hearing was billed to Burke Frame because I have two accounts for the work, one dated May 19, 1999 (that must have been backdated) and another dated November 12, 1999. The Tariff came into effect on June 28, 1999. However, similarly to Daflos, I do not have to decide this issue in the present case.

3.  COSTS FOR REHEARING - APPRAISAL COSTS

3.1 Introduction

[32] The two claimants that were involved in the reconsideration hearing each submitted identical Bills of Costs for the appraisal costs for the reconsideration hearing claiming $9,000 each in fees (90 units for 5 items) plus $302.50 each in disbursements plus taxes. It was the claimants' position that the Tariff did not authorize any apportionment of costs between the claimants. One of the Bill of Costs as claimed is set out below together with an indication of the number of possible units that can be claimed for the relevant item:

Item	Description	Fixed	Min.	Max.	Claimed
1	Correspondence, conferences, instructions or meetings with a claimant and counsel relating to a claim, whether before or after commencement, for which provision is not made elsewhere in this tariff		1	20	10
3	Market research, including all necessary attendances		1	20	10
4	Inspection of comparable properties		1	20	10
5	Analysis of data and preparation of a report or reports		1	60	30
6	Preparation for hearing, if claim set down, for each day of necessary attendance of appraiser, to a maximum of 30 units	5			30

[33] At the commencement of the hearing, counsel for the claimant conceded that item 6 should be claimed at 5 units rather than 30, since the hearing occupied only one day. Therefore the total number of units claimed for each claimant was 65 units.

[34] Reinhard Burke, counsel for both claimants at the reconsideration hearing, filed an affidavit. He deposes that at some date prior to the reconsideration hearing he was provided with a new appraisal report by Mr. Davies from the respondent, Creston. While it was Mr. Burke's view that no new appraisal report was admissible, he did not know whether the board would accept his position. As a result he asked Mr. Grant, of Interwest Property Services Ltd., who had been the appraiser in the initial compensation hearing, to review the new appraisal report from Mr. Davies and to prepare a rebuttal report and to set aside time to attend at the hearing. In these circumstances, Mr. Burke stated that Mr. Grant's services were necessarily and reasonably incurred. Mr. Burke attached the document that Mr. Grant prepared to his affidavit, together with Mr. Grant's account for both claimants and his client billing work sheet. Mr. Burke had prepared the Bill of Costs.

[35] The time sheets recorded a total of 16 hours by Interwest on the reconsideration hearing between November 1 and November 4, 1999 - 12 hours of time by Danny Grant at $200 an hour and 4 hours by S. Grant at $60.00 an hour for a total charge of $2,640 for fees. The time sheets indicate that Mr. Grant recorded 2 1/2 hours reviewing the respondent's report and related reports and notes and 1/2 hour instructing what I assume was a local appraiser to do some research on the Kelowna properties in Mr. Davies' new appraisal report. (I note that Interwest is based in New Westminster.) Eight hours were recorded for preparing an analysis and reply letter and one hour for consulting with counsel. The four hours by S. Grant were for printing municipal statistics on comparable properties and downloading and printing photos from the Kelowna appraiser. One account dated November 12, 1999 was submitted to Burke Frame by Interwest on account of both claimants. It included the above fees plus GST, together with one disbursement in the sum of $605 plus GST, for the work of the local appraiser's research on the Kelowna properties. Thus the total actual account for this work was $3,471.10.

[36] Creston made a number of submissions. It did concede that since it had delivered a new appraisal report, it was necessary and proper for Mr. Burke to retain Mr. Grant to review this report although Mr. Grant's work was never used. In considering the appraisal Bill of Costs section 3(2) of the Tariff provides that "the reviewer must allow those costs under the tariff that were proper or reasonably necessary to conduct the proceeding" (emphasis added). The claims of the Inghams and Mr. Kowalski had been reconsidered together and it was not reasonable for them to be submitting two Bills of Costs claiming for each item twice. Creston also took exception to several of the items that were claimed and suggested that the actual work that was done by the appraiser did not fit under the descriptions of those items. Given that it was a reconsideration hearing, the claimants were limited in the total number of units that might be claimed under any item, since the unreported oral decision of the board, Yue v. Surrey (City), ECB #10/00, August 31, 2000, made clear that the number of units that could be allowed for any particular item must be considered in relation to the whole proceeding. In addition, Creston submitted that under section 4(6) of the Tariff the minimum units, for matters on which little time should have been ordinarily spent, ought to be allowed. Further, where the actual account billed by the appraiser to the client were in evidence, this should be considered in deciding the amount to be allowed under the Bill of Costs. It must also be kept in mind that the very first issue that was determined in this hearing was that no new appraisal evidence would be admitted. Creston also had specific submissions on particular items and disbursements that will be considered below.

3.2 Issues

[37] The interpretation of Schedule 2 of the Tariff raised several issues in this part of the cost hearing. These are as follows:

• When there is more than one claimant represented by one lawyer, are each entitled to their own Bill of Costs?
• What is the appropriate role of claimant's counsel in preparing an appraiser's Bill of Costs under Schedule 2?
• Which factors need to be considered in deciding on the number of units in an appraiser's Bill of Costs under Schedule 2?
• How is work to be attributed to the different items in Schedule 2?
• Can an expense for real estate appraisal services be billed as a disbursement and what is necessary to prove a disbursement in a Bill of Costs under Schedule 2?

3.3 Number of Bills of Costs

[38] I will deal first with the two Bills of Costs. In Yue v. Surrey, the Chair of this board held that only one Bill of Costs could be rendered when the claimants were both owners of the same property, with one application for determination of compensation with identical issues and claims. In this case I have two separate claims, with two separate applications for determination of compensation involving two separate properties. However, the claims are very similar and at the initial compensation hearing the claims were heard together with one counsel for all of the claimants. Similarly one appraiser was retained for all of the claimants. On this reconsideration claim all of the work that was done by the appraiser was done for the two claimants collectively, as is evidenced by his "report" and his account and client billing work sheet.

[39] The claimants submit that there is no ability to apportion costs between the claimants under the Tariff. Section 45(3) of the Act provides that "a person whose interest ... in land is expropriated is entitled to be paid costs necessarily incurred by the person for the purpose of asserting his or her claim ... ". Section 3(2) of the Tariff provides that "when making an assessment of costs ... the reviewer must allow those costs under the tariff that were proper or reasonably necessary to conduct the proceeding." While section 9 of Appendix B to the Supreme Court Rules for Party and Party Costs, specifically authorizes the registrar to apportion costs between different plaintiffs or different defendants, there are cases that have apportioned costs when this section was not in effect. Where section 9 was not applicable, and two or more parties were entitled to costs and were represented by one solicitor, it has been held that one bill of costs under Rule 57 may be submitted for assessment. See Ashby v. 2076 Holdings Ltd. (1990), 19 A.C.W.S. (3d) 1395 (B.C. Master) and Dical Investments Ltd. v. Morrison (1993), 13 C.P.C. (3d) 305 (0nt Ct (Gen Div)). However, where different work was done for one or more persons who were plaintiffs, separate allowances of costs should be allowed for that item since each plaintiff had a separate cause of action. Evans v. Wilson (1978), 6 B.C.L.R. 294 (S.C.). When only one of several plaintiffs or defendants is successful there is case law authority for how the costs in those circumstances will be apportioned. In a recent cost decision of the board, Budd v. British Columbia (Minister of Transportation and Highways) unreported, ECB # 49/96/199, January 31, 2001, the Chair, Robert Shorthouse, discussed at par 50 the legislative provisions that require the reviewer of costs under the Tariff to continue to consider the reasonableness of the costs at issue. In any event, in my opinion, when work is done for claimants collectively, it is reasonable that they share in a Bill of Costs. The fact that the Tariff does not specifically spell out what is to happen when claimants with similar interests are represented by one solicitor or one appraiser is not a bar to the reviewer treating the claimants collectively or, in the alternative, allowing separate costs for certain items (or all items), depending on the evidence.

[40] In the circumstances of this case, where neither claimant had any work that was done for them separately, the Inghams and Mr. Kowalski are each entitled to half of a single Bill of Costs.

3.4 Role of claimants' counsel

[41] I would add that I agree that Mr. Burke, as the solicitor who is responsible for the conduct of this case, is likely the appropriate person to prepare the appraiser's Bill of Costs. In Budd, the Chair commented on the role of claimant's counsel in a section 45 cost hearing. In that case the claimant's appraiser had not provided an amended Bill of Costs for his post-Tariff work nor had he provided any evidence of his pre-Tariff work. At par. 59 and 60 the Chair made clear that it is counsel's role at a cost hearing to seek reimbursement on behalf of their client for all of the client's costs, not to merely seek reimbursement of their own account. As I said in C.R. All Trucks Ltd. v. British Columbia (Minister of Transportation and Highways) (2000), 69 L.C.R. 197 at 214:

a bill of costs that reflects the Tariff is not a translation of a bill that a lawyer or appraiser might send his or her client, but an entirely separate exercise.

It is understood that a lawyer has some knowledge and experience with Bills of Cost under Rule 57 and Appendix B of the Rules of Court and of the applicable case law interpreting these Rules. A lawyer can also be assumed to have an awareness that the principle of compensation for costs in expropriation proceedings is different than in civil litigation. It is true that no one has yet had much experience of Schedule 2 of the Tariff that provides for Bills of Costs for real estate appraisers. However, in my opinion, a lawyer is likely more experienced than the appraiser to "translate" the appraiser's account to his client into a Bill of Costs under Schedule 2, if it is done in consultation with the appraiser as to the time reasonably spent and the difficulty of the exercise. I would add that, as was done in this case, the appraiser's back up documentation in the form of time sheets with a reasonably detailed description of what was done, together with the work product, are useful evidence. In order to properly consider which of those items that are in dispute should be allowed, and at how many units, a reviewer needs evidence of this type.

3.5 Factors to be considered

[42] In considering the real estate appraisal costs to be awarded under the Tariff, I must consider several general factors: those set out in section 45(10) of the Act, the role of the actual accounts, and the effect of previous work done by the appraisers in the proceeding.

[43] In this case the Court of Appeal had initially indicated at p. 168 of their decision that it would remit the matter to the parties to try and agree on the amount of compensation, given the relatively small amounts involved and the considerable expense entailed in further proceedings before the Board. The board in its decision on the reconsideration hearing dated July 28, 2000 commented on this and the fact that the claimants only received $2,500 each as further compensation. Thus the degree of success in terms of the further compensation achieved at this hearing is not very great. Although I do not have Mr. Davies' report that Mr. Grant reviewed, it appears from Mr. Grant's memorandum listing various appraisal points about particular comparables, that the real estate issues were not particularly complex. In the end a one day hearing was held, in which counsel argued on the basis of the previous evidence. Mr. Grant did not attend and his work was not used because counsel for the claimant was successful in his application that the respondent's new appraisal report should not be entered. None of the factors listed in section 45(10) that might support higher costs appears to apply to any significant degree, or at all, in this case.

[44] In Budd the Chair considered the role of actual accounts to the client in considering a Bill of Costs under the Tariff. He declined to agree with the respondent's position that the actual accounts were necessary evidence at a cost review. After reviewing a number of relevant legislative provisions and authorities he decided that the amount of the actual account, if in evidence, might be considered in assessing reasonableness but did not automatically provide an absolute cap on an expropriated owner's Bill of Costs under the Tariff. On the other hand, section 4(6) of the Tariff provides that when an item provides for a range of units, the reviewer must have regard to the principle that "one unit is for matter upon which little time should ordinarily have been spent" and "the mid-point of the range is for matters upon which an average amount of time should ordinarily have been spent" and "the maximum number of units is for matters upon which a great deal of time should ordinarily have been spent". In Topping v. British Columbia (Minister of Transportation and Highways), an unreported oral decision, October 20, 2000, ECB #40/99, I said at par 13: "the evidence with respect to the actual time spent is not necessarily indicative of the number of units that are appropriate". Thus the actual account does not necessarily establish a minimum level for the final dollar amount in the Bills of Costs. As indicated above, while the actual accounts may not always be in evidence, a reviewer is assisted by detailed time sheets as well as the work products that have been produced.

[45] In several decisions of the board, including Yue v. Surrey (City) and Chu v. School District No. 36 (Surrey), unreported, ECB # 35/99/195, January 9, 2001, it has been made clear that an application for costs under the Tariff will be considered in the context of the whole proceeding, including work that was done pre-Tariff. However, in this case the work done post-Tariff is a reconsideration hearing following a direction of the Court of Appeal. In my opinion, in this somewhat unusual circumstance, the amount of pre-Tariff work for the initial compensation hearing that might have been billed for any particular item is irrelevant.

3.6 Items under the Tariff

[46] Claims have been made for appraisal work under five different items out of a total of seven items in the appraisal Schedule 2. Creston objected to several of the items being claimed at all on the grounds that the appraisal work that was done did not fit under the item claimed. Creston suggested that in considering which items could be claimed that each of the items listed should be treated as mutually exclusive categories. It was Creston's position that any one professional service can be fitted under only one item on the Tariff.

[47] Schedule 2 for appraiser's costs under the Tariff is new, and the primary precedent is Appendix B under the Rules of Court that is for Party and Party costs for lawyers. Thus there is little precedent for categorizing the work done by an appraiser under the various items in Schedule 2. I agree that there should not be double counting of a professional's time so that, for example, the same one hour of an appraiser's time reviewing some information is not attributed to item 1, to item 5, and to item 6 or any combination of these items. On the other hand, if I am looking at accounts and time sheets, a single general description in an account might describe work under two or more different items in the Tariff. I will consider each item in turn and determine whether it appears that Interwest did work under that item.

[48] Item 1 is a general item for "[c]orrespondence, conferences, instructions, or meetings with a claimant and counsel relating to a claim ... for which provision is not made elsewhere in the Tariff". Creston submitted that Mr. Grant's review and analysis of Mr. Davies' report did not fit into the same class of services that are listed under Item 1. I am not inclined to read this list of services too restrictively, when the schedule for appraisal costs was modelled on party and party costs for legal services in Appendix B to the Rule of Court. The important part of the description of item 1 is "for which provision is not made elsewhere in the Tariff". In any event, there were no entries on the client billing worksheet for which provision is not made elsewhere in the Tariff. As a result I allow no units for this item.

[49] Creston suggested that Interwest provided no services under items 3 and 4, which sections provide for "market research, including all necessary attendances" and "inspection of comparable properties". Creston says that the local appraiser, hired to check out information on the Kelowna properties, may have done market research or inspections but his work was billed as a disbursement. I note that at this stage Mr. Grant was familiar with the subject properties, having prepared his own report for the initial compensation hearing. From a review of Mr. Grant's memo and the time billing sheets it appears that the only market research or property inspections done by Interwest was the printing of municipal statistics on the comparables. The time sheets also indicate that the local appraiser sent some photographs, although I was not provided with any further information as to what he did. I agree with Creston that work billed as a disbursement cannot be claimed separately as an item in the Tariff. Very little time was spent by Interwest specifically on market research and inspection. I allow one unit under item 3 and no units under item 4.

[50] Creston submits that all of the work done by Interwest should in fact be categorized as falling under item 6. This item provides for "preparation for hearing, if claim set down, for each day of necessary attendance of appraiser". Creston says that Mr. Grant's work was all done in preparation for the hearing but given that, in the end, Mr. Grant did not attend the hearing, then the wording of item 6 means that nothing can be awarded under this item. The claimants say that this item is non-discretionary and the fixed units for one day of attendance should be allowed.

[51] With respect to Creston's position that the description in item 6 prevents any allowance of units when the appraiser does not in fact attend the hearing, I note that item 6 is followed by item 7 "attendance at hearing of claim or of an issue in a claim, for each day of necessary attendance of appraiser". In Schedule 1 for legal costs item 18 is described as "preparation for hearing, if claim set down, for each day of hearing" and it is followed by item 19 "attendance at hearing of claim or of an issue in a claim, for each day". In my opinion, the difference in wording between Schedule 1 for legal costs and Schedule 2 for appraisal costs is that the lawyer is expected to attend the whole of the hearing that is set down or that occurs and the appraiser is not. The appraiser is only entitled to claim for the preparation time and actual attendance for those days that it is necessary or potentially necessary for him or her to attend. An appraiser, like a lawyer, can claim for preparation time for a hearing that does not in the end take place as scheduled, if there is evidence that he or she actually spent time preparing for the hearing very shortly before the hearing was scheduled to take place.

[52] I agree that some of the work done by Mr. Grant in this case can be categorized as preparation for the hearing. However, normally there is a gap between the appraiser completing a report and testifying at the hearing as a result of the provisions of the Evidence Act. Item 6 contemplates circumstances when review of the appraiser's report and the file, together with review of the other side's appraisal report, and consultation with counsel is necessary solely for the purpose of testifying. In this case, Mr. Grant's time has been spent working on a document as well as preparing for the hearing and consulting with counsel. While all the time spent working on the document might be included as preparation for the hearing, I am disinclined to be so rigid in the categorization of work under a particular item. I allow the 5 units for this item for some of the work done by Interwest as shown on the time sheets.

[53] Item 5 is stated to be for "analysis of data and preparation of report or reports". Creston says that in this case no report was prepared. What is attached to Mr. Burke's affidavit and called a report is in fact a memo providing a number of bulleted points that critique the respondent's report. It is not a report as defined in Bambrough v. Ministry of Housing for Ontario (1974), 7 L.C.R. 103 (Ont. C.A.). In that case the Court of Appeal quoted the definition for an appraisal report by the Appraisal Institute of Canada (Real Estate Appraising in Canada A.I.C. 1972, p 265): "[t]he appraisal report is a written document which presents a value estimate along with the facts, analysis, interpretation and conclusions leading to that value estimate." The Court of Appeal went on to find that the document before them was not an appraisal report as contemplated by the Ontario Expropriations Act. This case was followed in Karp v. Kelowna & District Hospital Society, (1998), 65 L.C.R. 241 (B.C.S.C.). Creston also claimed that Mr. Grant's "report" in this case was similar to his report in British Columbia Corp. of Seventh-Day Adventist Church v. British Columbia (Ministry of Transportation and Highways) (1991), 45 L.C.R. 121 (B.C.E.C.B.). In that case a former Chair of this board, J.H. Heinrich Q.C., refused to admit Mr. Grant's report on the basis that it was heavily laced with argument.

[54] I agree that Mr. Grant's report does not satisfy the description of the Appraisal Institute of Canada. It is not the type of report that is contemplated being served on the expropriated owner under section 20 of the Act. It is also not a rebuttal report that could have been produced at the reconsideration hearing. Mr. Grant himself called the document that he prepared a memorandum to counsel and a review of the document shows that it is basically a series of comments that might be useful to counsel in considering his cross-examination of the respondent's appraiser. However, I do not think that it is a prerequisite to a claim under item 5 that the work necessarily be for a complete appraisal report with an estimate of value as set out by the Appraisal Institute of Canada or that it is a board ready rebuttal report. Work could be allocated to this item, for example, where the case settled after work on an appraisal report had started but before it was completed. I am of the view that the document in this case can be classified as a report for the purposes of item 5. Alternatively this work could have been considered under item 1 (in addition to item 6 which I have already allowed). But when I consider the number of units that should be allowed I will take into account the fact that this is a much less polished document than a board ready report. In considering section 4(6) of the Tariff and the amount of time that ought to have ordinarily have been spent on this report, I am somewhat hampered because I do not have Mr. Davies' report. However, I conclude that Mr. Grant's document is one on which relatively little time ought to have ordinarily been spent in comparison to appraisal reports in general. Under item 5, a complete appraisal report of an average type of residential property, for example, that would likely be unfamiliar to the appraiser, with an average number of appraisal issues might be allowed the mid-point of the range or 30 units. In this case Mr. Grant was already familiar with these properties as he had done an appraisal report for the initial hearing and he had also testified at that hearing. I agree with Creston that the time spent after the hearing had concluded in this case was not reasonably necessary. After considering all of these factors, I allow 7 units for item 5.

[55] Thus the total number of units allowed is 13 units at scale 2. This compares to a total of 15 hours billed by Interwest prior to the hearing, including 12 hours for time by Mr. Grant.

3.7 Disbursements

[56] There was one disbursement that was listed on Interwest's account and its client billing worksheet for Caruso Appraisals Inc. in the sum of $605.

[57] Section 5(1) of the Tariff provides:

5 (1)

In addition to the costs allowed on a review under the tariff, the reviewer may allow a reasonable amount for expenses and disbursements that were necessarily and properly incurred in the conduct of the proceeding.

[58] Subsection (1) is very similar to Rule 57(4) of the Rules of Court of the Supreme Court of British Columbia, except that the Tariff allows the reviewer discretion, "may allow", while Rule 57(4) is mandatory, the registrar "shall allow". As indicated in the earlier cost decision in this matter at 69 L.C.R. 263, the proper test for a disbursement is whether it was necessary and proper at the time that it was incurred. Van Daele v. Van Daele (1983), 56 B.C.L.R. 178 (C.A.).

[59] Creston made the preliminary point that since there is a mandatory obligation under section 3(1) of the Tariff that real estate appraisal costs be billed under Schedule 2, real estate appraisal work should not generally be billed as a disbursement. I agree with this submission. However, under section 5(1) there is a discretion to allow a reasonable amount for expenses and disbursements that were necessarily and properly incurred. In this case there is only a limited amount of work carried out by Caruso Appraisals Inc. Further, although I have no evidence from Mr. Grant, it appears that it was likely reasonable to have a local appraiser carry out the function of checking information on the Kelowna properties, especially when there were time constraints on Mr. Grant imposed by the scheduled hearing date. In these particular circumstances, I am prepared to answer the preliminary point by saying that this limited expense meets the initial test at this stage of being a necessary and proper expense under section 5(1) rather than being categorized as a real estate appraisal cost that falls under items of description in Schedule 2 of the Tariff. In doing so, I would go on to point out, however, that given the mandatory wording of section 3(1) of the Tariff, it is unlikely in general that legal or appraisal services will be treated as disbursements rather than falling under Schedule 1 or 2 of the Tariff.

[60] In any event, the question remains as to what is necessary to prove a disbursement. Creston pointed out that I had been provided with no invoice to support this cost. The Court of Appeal set out a number of principles for proving a disbursement for an expert in Holzapfel v. Matheusik (1987), 14 B.C.L.R. (2d) 135 (C.A.). The onus is on the party claiming the disbursement to establish the necessity and reasonableness of the expense. An affidavit from the solicitor responsible for presenting the case is required stating the nature and extent of the work that was done by the expert and attesting that this work was necessary for a full and proper presentation of the case. The account for the disbursement should be attached as an exhibit, and if there is insufficient information on the account, then an affidavit from the expert may also be required. The party responsible for paying the costs should say in good time what claims and what disbursements are disputed and why. When strict proof of a disbursement is demanded, there is no alternative to providing such proof.

[61] In this case I have an affidavit from Mr. Burke, the lawyer with conduct of the proceeding, that attests to the necessity of Mr. Grant's work. I have Mr. Grant's account and while the account itself is not very detailed, I have appropriate back up documentation in his client billing worksheet. However, Mr. Grant has hired an expert and I do not have an affidavit from Mr. Grant outlining the nature and extent of the work that was done by this expert nor attesting to the fact that this work was necessary or why it was necessary. Nor do I have the actual invoice billed by that expert to Interwest.

[62] When disbursements are in dispute the procedures set out in Holzapfel that are appropriate need to be followed. For disbursements for expenses other than experts the actual invoice should be provided (except for photocopying or fax charges when the back up documentation may be enough) along with the appropriate affidavit evidence. On the other hand, as Holzapfel makes clear, the party claiming costs needs to have clear information as to what is in dispute in advance of the cost hearing. This board has already followed Holzapfel on this point in Underhill v. Pemberton Valley Dyking District and Ferguson v. British Columbia (Minister of Forests) (1999), 66 L.C.R. 40. In the present case, it would appear that while Creston challenged the whole of the real estate appraisal Bill of Costs, it did not clearly identify that this disbursement was in dispute until the hearing. While I would have preferred more information to prove this expense under section 5(1) of the Tariff, in the limited circumstances of this particular case, I will allow it.

3.8 G.S.T.

[63] Subsections 5(2) - (5) of the Tariff provide:

5 (2)	Subject to subsection (4), if tax is payable by a party in respect of legal or real estate appraisal costs, the reviewer must allow an additional amount calculated on the monetary value of the units assessed equal to the percentage rate of tax payable.
(3)	Subject to subsection (4), if tax is payable by a party in respect of expenses or disbursements, the reviewer must allow an additional amount calculated on the monetary value of the expenses or disbursements assessed equal to the percentage rate of tax payable.
(4)	If a person claims an additional amount under subsection (2) or (3) for goods and services tax payable on legal or real estate appraisal costs or on expenses or disbursements, that person must provide proof that
	(a)	the person is not a registrant under the Excise Tax Act (Canada), and
	(b)	the person is not entitled to and cannot claim reimbursement of any goods and services tax paid in respect of the costs, expenses or disbursements to which the additional amount claimed relates.
(5)	In the absence of the proof required by subsection (4), no additional amounts for goods and services tax payable on costs, expenses or disbursements is allowed under subsection (2) or (3).

[64] The claimants provided affidavit evidence that they were not registrants under the Excise Tax Act (Canada), nor were they entitled to claim reimbursement of any goods and services tax paid. Therefore the claimants are entitled to GST on the costs and disbursements that have been allowed for the appraisal costs. PST does not apply to real estate appraisal services.

4.0  COSTS OF THIS HEARING

[65] Creston requested that the issue of costs for this hearing be delayed until after this decision is released in order that it might consider bringing forward further evidence. However, I would note that under the Tariff the only items that would appear to apply are items 14 and 15 and that the hearing once it got under way was just under two and a half hours for both applications. Thus, the number of units to be shared by all the claimants are three units at scale 2. In these circumstances no matter what potential evidence there is, I very strongly urge the parties to settle the costs of this hearing at three units without resorting to the costs of any further hearing. In my view the claimant would also be entitled to reasonable travel expenses in this instance, although I did indicate at the hearing, that this matter should have been heard by teleconference. Parties should seek to avoid unnecessary expenses whenever possible.

5.  SUMMARY

[66] With respect to costs of the initial section 45 cost application I have allowed the Burke Frame account at a total of $7,500, inclusive of disbursements and taxes, and the Interwest account at $1,700 inclusive of disbursements and taxes. The other accounts are allowed as follows: the Niedermayer account $50, the Temple account $500, the Finn Transportation account $550 and the Legg account $43.38. This total of $10,343.38 is divided between the three claimants at $3,447.80 each. Mr. Kowalski is also entitled to an additional $300 for the extra Burke Frame account.

[67] For the real estate appraisal costs of the reconsideration hearing I have allowed 13 units at scale 2 or $1,300 and the disbursement of $605 plus G.S.T for a total of $2,038.35 or $1,019.18 each to the Inghams and Mr. Kowalski.