Oral Decision

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

ECB Control No. 40/99 (73 LCR 72)
Tariff Costs

October 20, 2000
Victoria, B. C.

[1] This is an application under section 48(2) of the Act for review of three accounts in this matter.

[2] The Form A in this matter was filed August 10, 1999. It involved a total taking of a residential property owned by the two claimants, Danny Topping and Tina Topping, pursuant to a section 3 agreement signed on August 6, 1998. The sole claim in the Form A is with respect to disturbance damages for relocating to other property. The amount claimed in par 11.2 of the Form A is $13,248.70. Advance payments have been made that appear to be solely attributable to this claim of at least $4,500. Thus the total potential claim for new money is approximately $8,500. The material that was filed suggests that there is some duplication in this claim and leaving aside issues of proof, the actual claim on its face appears to be less than $8,000 new money. This matter is set down for hearing in ten days time.

[3] There have been 6 accounts submitted by the claimant to the authority as of October 17, 2000, for work done until August 31, 2000. There were three accounts in 1998 totalling $7,642.77 including taxes on which a total of $5,794.23 including taxes has been paid on a without prejudice basis. One of these, an account dated August 11, 1998, for $6,277.15 including taxes is part of this review. The other two accounts under review are under the Tariff of Costs Regulation, B.C.Reg 189/99 (the Tariff): one dated May 2, 2000 and sent to the authority on July 14, 2000 for $8,447.09 and one dated September 7, 2000 and sent to the authority on October 17, 2000 for $1,728.51. An identical account dated May 2, 2000 for $8,447.09 was originally submitted for Marie Topping. This account was abandoned prior to the hearing, but for the disbursements which were claimed with the other May 2, 2000 account for Danny Topping so that it now totals $8,480.98.

August 11, 1998 account

[4] This account is for $5,090 in fees, plus $443.50 in disbursements, $387.35 in GST and $356.30 in PST for a total of for $6,277.15. The $5,090 in fees for legal services is allocated $4,895 for fees from Mr. Melville for 22.25 hours at $220 per hour and $195 for Ms. Olkovick for 2.6 hours at $75 per hour. The account covers the period from June 25, 1998 to August 11, 1998. This account is the first account that was rendered in this matter and thus covers initial instructions from the claimants. It also includes reviewing MoTH's appraisal account and two trips to the property in Cobble Hill on Vancouver Island culminating in a section 3 agreement.

[5] One of the issues with respect to this account is the hourly rate. Although the account is billed at $220 an hour for services provided by Mr. Melville, the claimants cite Rastad Construction v. MoTH (1996) 59 L.C.R. 149 (B.C.E.C.B.) as authority for Mr. Melville being allowed the hourly rate of $200. With respect to Ms. Olkovick the most that the board has allowed for a legal assistant is $65. See Ferancik v. Langley (1997), 62 L.C.R. 291 (B.C.E.C.B.). I agree that these are the appropriate hourly rate for Mr. Melville and Ms. Olkovick.

[6] Another issue is the time and disbursements for two trips to the property during July 1998. While I accept that in hindsight two trips may not have been necessary, in the circumstances of how these events unfolded, the urgency of this taking and the end result of a successful section 3 agreement between the parties I think that two trips were reasonable.

[7] There was also at least indirectly, the issue of the duplication of work. We have evidence that none of the fees claimed under the two later Tariff accounts had previously been billed. At this stage the amount of the eventual claim in the Form A was not known. The claimants are entitled to fees in the total slightly rounded sum of $4,600 for services rendered and all of the disbursements billed and corrected to $0.15 for photocopies, plus taxes as amended.

Two Tariff accounts
Whether the costs have been incurred

[8] Section 48(1) of the Expropriation Act, R.S.B.C. 1996, c. 125 (the Act) provides that the owner may submit a written bill to the authority for "the reasonable ... costs that have been incurred by the owner" to date. Counsel for the authority submits that the first requirement for a payment is that the costs have been "incurred". In this case we have evidence that all of the claimants' legal advisors had recorded a specific number of billable hours in the period covered by the bill and that none of that work had been previously billed. Counsel for the authority accepted that the costs had been incurred.

Scale

[9] Although the May account under the Tariff was claimed at Scale 3, the September account was claimed at Scale 2 and the claimant conceded that it was seeking Scale 2 on both accounts. The respondent's position was that Scale 1 was appropriate. I agree with the respondent on this point. A claim where the only issue is moving expenses is certainly a matter of less than ordinary difficulty or importance. In my opinion, it would still be a Scale 1 matter even if the Tariff provided for a five point scale. I do not accept the claimant's interpretation of par 4(3) of the Tariff, in requiring the authority's Notice of Motion for section 48 review to specifically state that an order for Scale 1 was being sought. The respondent did give notice to the claimants that one of the issues was the "unit rate".

When items should be claimed

[10] Turning next to the items claimed. In the May 2, 2000 account, there are 10 units claimed on a scale of 1 to 10 for item 7, for giving discovery of documents. At that time the respondent had delivered a demand for discovery of documents but the claimants list of documents was not issued until August 14, 2000. Mr. Melville acknowledged in his affidavit that the amount of billable time that he had allocated for all legal advisors' time for this item for the period covered by the May 2, 2000 account was 0.2 hours. Nothing for item 7 appears on the account dated September 7, 2000, presumably since a full 10 units had been claimed in the previous bill. In his affidavit, however, Mr. Melville says that 3.0 hours of billable time from all legal advisors had been spent on this item during the period covered by the September 7, 2000 account. While using the Tariff schedules for a series of bills for advance payment of costs presents some difficulties in allocation, in my opinion, nothing should ordinarily be claimed for an item such as providing discovery of documents until a list of documents has been delivered. The fact that counsel (or a junior or an assistant) may have spent some time on an activity that might be allocated to a particular item does not necessarily justify claiming for that item well in advance of the activity described in that item having reached at least partial fruition. This is because I need some evidence about what happened overall in a particular item in order to exercise any discretion about how many units are appropriate. If counsel submit successive accounts in which they claim units for item 7 for providing discovery of documents prior to providing a list, there is no basis, in the absence of other specific evidence, for deciding on whether it is a matter on which an average amount of time, for example, should have been spent. If I had only the May 2, 2000 Tariff account before me I would not award any units for item 7. However, given that I have the subsequent Tariff account dated September 7, 2000 and evidence that further time was spent on this item culminating in the provision of a list of documents, then, in these circumstances, I will consider this item.

[11] The corresponding item 6 is for obtaining discovery of documents. In the account dated September 7, 2000, 10 units on a scale of 1 to 10 have been included for this item. There is evidence that during the time period covered by the bill, the respondent's list of documents, dated August 25, 2000 had been delivered to claimants' counsel, and that one or more of the claimants' legal advisors had allocated approximately one hour of time on activities related to this item. The respondent's list of documents has approximately 150 documents. This list, similarly to the claimant's list, appears to list every piece of correspondence and document in the respondent's file individually. Therefore a large number of these documents have been previously exchanged between the respondent and claimants' counsel. This account does not include time spent reviewing any of the documents from the respondent's list. For the reasons provided above, in my opinion, it was premature to submit a Tariff bill for item 6 as of August 31, 2000. I award no units at this time.

Units

[12] The next question is the number of units claimed. Where there is a range of units that can be awarded, the claimants have claimed the maximum number of units in each case where there is a range. The reason offered was that there was no precedent for how Tariff items were to be billed under the Tariff. However, I note that the second Tariff account dated September 7, 2000 was prepared after the oral decision of the Chair of the board in the case of Yue v. Surrey, on August 31, 2000. Claimant's counsel in Yue was the same as counsel in this case. Although reviews for advance payment of costs do raise issues that do not arise in a single cost review under Rule 57 of the Rules of Court, Yue made clear that the Tariff was to be applied in a comprehensive manner to the whole proceeding.

[13] Item 5 is for commencing and prosecuting a claim. There is a range of 1 to 10 units and 10 units were claimed. There was evidence that the claimants' legal advisors had recorded approximately 4 hours of time on item 5. However, section 48(1) of the Act continues to require that the bill under the Tariff consists of reasonable costs. Further, par 4(6) of the Tariff states 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". Thus the evidence with respect to the actual time spent is not necessarily indicative of the number of units that are appropriate. This case involves only a claim for moving expenses and at its best is for only $8,500. In my opinion, very little time should ordinarily have been spent commencing and prosecuting this claim. It appears that there has been no attempt to particularize this claim and seek payment from the authority. One might have thought, in a matter of this magnitude, that efforts might have been made to attempt some resolution of this case, without incurring the costs of full process. I award 1 unit on a scale of one to ten for item 5.

[14] With respect to item 7 giving discovery of documents, the list of documents produced by the claimants appears to contain approximately 150 documents in Schedule 1 and 14 documents in Schedule 3. Although this number of documents is not a small number of documents, it appears that in addition to some 65 - 70 receipts and invoices, the bulk of the documents are every letter and fax cover sheet between counsel and the respondent and counsel and the board, listed separately. In other words counsel has not had to review 165 new documents in providing discovery of documents. Mere invoices need less review than correspondence or contracts between the claimant and other parties, or than reports relevant to the expropriation, that can be found in many lists of documents. Although there was evidence that during the period covered by the two Tariff accounts a total of 3.2 hours by all legal advisors was spent on providing discovery of documents, as was stated above the actual time spent is not necessarily indicative of the number of units to be awarded. Given the guidelines in the Act and the Tariff, on a scale of 1 to 10, I award 2 units for item 7. Even if small amounts of time are spent on providing discovery of documents after August 31, 2000, I would not be inclined to award any further units for this item in a subsequent account, unless a relatively substantial number of new documents surfaced, in addition to the ordinary correspondence between claimants counsel and the respondent, and a supplementary list of documents was provided.

[15] The claimant is entitled to one unit for item 21 for setting this matter down for hearing.

[16] Item 1 is for correspondence and instructions not provided elsewhere in the tariff. This is a general item and my observations above about when it is appropriate to bill for an item clearly do not apply to this item. In the Tariff account dated May 2, 2000 the maximum of 20 units is claimed. There is evidence that the billable time from all legal advisors allocated to this item for the period covered by both Tariff accounts is 2.45 hours. However, the maximum of 20 units applies to a whole proceeding from when the claimant first meets with counsel. 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 unit.

Disbursements

[17] Claimant's counsel conceded at the hearing that photocopies although claimed at $.30 a page were sought at the board rate of $.15 per page. The board decision in Underhill v. Pemberton Valley Dyking District (1997), 62 L.C.R. 272 (B.C.E.C.B.) was cited as authority for a fax charge of $.50 per page. The disbursements in the Tariff accounts other than photocopying are allowed as claimed including the disbursements in Mrs. Topping's account. Photocopying is allowed at $.15 a page.

GST and PST

[18] There was sufficient evidence that the claimants were not entitled to claim reimbursement of GST for the costs claimed. Taxes are allowed on the items and disbursements as allowed.

"Approved by Sharon I. Walls, Vice Chair"