Oral Decision

In the Matter of Section 48(2) of the Expropriation Act
R.S.B.C. 1996, Chapter 125

ECB CONTROL No. 40/99
Tariff Costs

January 16, 2001
Victoria, B. C.

[1] This is a second application under section 48(2) of the Expropriation Act, R.S.B.C. 1996, c. 125 (the Act) for review of an account in this matter. This account dated October 30, 2000 is pursuant to the Tariff of Costs Regulation, B.C.Reg 189/99 (the Tariff). The decision in the earlier review, dated October 20, 2000 sets out the facts in this file, including the applicable scale, Scale 1.

[2] The account in this review totals $7,806.38 including $6,500 in fees and $370.45 in disbursements. Mr. Melville sets out in an affidavit that in the period covered by the bill 21.5 hours of legal services were billed for Tariff items in which a range of units is available. Work on Tariff items with fixed units was also performed.

[3] The first issue was whether there was sufficient detail to meet the requirements in section 48(1) of the Act that the costs have been incurred by the owner. While the respondent, the Minister of Transportation and Highways (MoTH) raised some questions as to this issue I note the decision of Chu v. The Board of School Trustees of School District No. 36 (Surrey), unreported, January 9, 2001. I am similarly satisfied that costs have been incurred by the claimants.

[4] Turning to those items in which a range of units are available, the claimant has again claimed the maximum number of units in each case minus the units awarded in the last review. The reason offered once again was that there was no precedent as to how many units should be awarded. I agree with the chair's comments in Chu that the alleged lack of case authority does not excuse the claimants from exercising professional judgement in this matter. In any event, when this review occurred there were two decisions that did provide some precedent: Yue v. City of Surrey unreported, August 31, 2000 and the earlier decision in this file.

[5] The claimants offered to accept a reasonable sum for this account on a without prejudice basis. However, when the maximum number of units are billed there is no basis for MoTH to make any assessment as to what is reasonable. It was only when the Affidavits were provided shortly before this review that there was some information as to what work had been done. MoTH is entitled to receive with a bill of costs sufficient information that it can assess the reasonableness of the bill.

[6] Item 5 is for commencing and prosecuting a claim. One unit was awarded in the last review. Nine units are claimed in this account and Mr. Melville indicates that one further hour out of a total of five hours of legal services have been expended on this item. This appears to be for an amended Form A at the compensation hearing with new numbers for amounts claimed in line with the evidence. As I said in the first review, very little time should ordinarily have been spent commencing and prosecuting this claim that was solely for moving costs. Two units altogether is appropriate and therefore I award one further unit.

[7] Item 7 is for giving discovery of documents. Two units were awarded in the last review. Eight units are claimed on this bill and Mr. Melville indicates that a further 5.95 hours out of a total of 9.15 hours of legal services have been expended on this item. Despite the amount of time alleged to have been spent, as I indicated in the last review, this is a matter in which very little time ought to have ordinarily been spent. The relevant documents are merely invoices for moving expenses and require little review. No new documents have been produced. I award no further units.

[8] Item 6 is for obtaining discovery of documents. No units were awarded in the last review. Ten units are claimed on this bill and Mr. Melville indicates that a total of 2.7 hours of legal services have been expended on this item. Details of the authority's List of Documents were provided in the previous decision. Very little time should ordinarily have been spent on this item. Two units are awarded.

[9] Item 1 is for correspondence and instructions not provided elsewhere in the tariff. One unit was awarded in the last review. Nineteen units are claimed in this bill and 12.85 hours are alleged to have been spent. As was indicated in the earlier review the total number of units for this item applies to a whole proceeding including the work that was billed pre Tariff. Given the nature of this claim, the amount involved, and the time spent on the pre Tariff accounts that would have been allocated to item 1, the time that should ordinarily have been spent in my opinion is one more unit.

[10] Items 12 and 13 are claimed for the preparation and hearing of three applications. Items 14 and 15 are claimed for the preparation and hearing of the earlier cost review. There was one Notice of Motion brought by the authority containing a request for a section 48 review of two accounts and three other applications. There was a second Notice of Motion brought by the claimant for a section 48 review of a third account. Only the application for particulars proceeded. There were no further documents and the parties agreed that the compensation hearing could be heard in one day rather than three. The application for particulars was heard in conjunction with the section 48 review of the three accounts in one hearing that was less than 2 1/2 hours.

[11] The claimant has claimed a total of 17 units for these items by claiming for every application separately and by claiming for two half days of hearing: a 1/2 day for the hearing and a 1/2 day for listening to my oral reasons a few days later. This is an unreasonable approach. When there is one hearing on an interlocutory application only one award for units is appropriate, even if the Notice of Motion contains several requests for different orders. The exception to this is that units are available for an interlocutory application and a section 48 review. However, 10 minutes listening to oral reasons does not constitute another 1/2 day hearing for which units may be charged. I award 1.5 units and 2.5 units for items 12 and 13 and 1 unit and 2 units for item 14 and 15.

[12] Item 18 is for preparation of the compensation hearing which was scheduled for one day. Five units are claimed and are not in dispute. Five units are awarded.

[13] Thus, the total number of units awarded are 16 units.

[14] With respect to disbursements, MoTH objected to the large number of photocopies (344 pages) and faxes (418 pages) and said that there was no evidence to justify these numbers. There is an onus on the claimant to prove disbursements where they are in dispute. However, objection to a particular disbursement ought to be communicated to the claimant prior to the hearing. Although there is no obligation under the Act to do so, we would urge the authority, now that we are under the Tariff, to clearly indicate to the claimant prior to any section 45 or 48 hearing precisely which items and which disbursements are accepted and which ones are in dispute. The review can then proceed on only those items that are under dispute and the claimant can be prepared to prove the disbursements where necessary, with actual receipts or back up documentation from the accounting system for such items as photocopying. In the present circumstances I substitute the board rate of $0.15 per page for photocopying and $0.35 per page for faxes and cut the number of faxes somewhat with respect to the board decisions for the previous section 48 review. Otherwise the disbursements are allowed as claimed despite the lack of proof at a total of $215.85.

[15] Relevant taxes on the fees and disbursements are applicable.

"Approved by Vice Chair"