| s.48/Tariff Cost decision
October
18, 2001, ECB Control No.: 48/95/212
| Between: | 415528
B.C. Ltd
Claimant | | And: | Greater
Vancouver Sewerage and
Drainage District
Respondent | | Before: | Sharon
I. Walls, Vice Chair | | Appearances: | L.
John Alexander, Counsel For The Claimant
Robert J. Mcdonell, Counsel For The
Respondent | REASONS
FOR DECISION 1. Introduction [1]
This is an application of the claimant under section 48(3) of the Expropriation
Act, R.S.B.C. 1996, c. 125 (the Act) and Tariff of Costs Regulation,
B.C. Reg 189/99 (the Tariff) for review of three accounts in this matter. [2]
The background to this claim is that at some point many years ago a pipeline was
constructed and installed by the respondent across a portion of the claimant's
land. In July 1994, the claimant and respondent entered into a section 3 agreement
providing for a statutory right of way for the pre-existing pipeline in favour
of the respondent. The respondent delivered the advance payment on August 16,
1994. The property has been subdivided into a 30 lot subdivision by the claimant. [3]
The original Form A was filed by the claimant on August 16, 1995. Counsel for
the claimant at this time was Bruce Melville of Peterson Stark. The matter was
first set down for a compensation hearing for August 11, 1997. The compensation
hearing has been adjourned five times and at the time I heard this cost application
was scheduled for the sixth time for what was now a 12 day hearing commencing
on September 24, 2001. The fifth scheduled hearing date in September 2000 was
adjourned in September 2000 because the claimant decided to appoint new counsel.
John Alexander of Cox Taylor, present counsel for the claimant, filed a Notice
of Change of Solicitor on February 1, 2001. [4] Mr. Alexander
presented the following Tariff accounts for payment:
| Tariff account | Date | Tariff
fees | Disbursements | Total * |
|
| | i) | Legal-Peterson
Stark | Jul 11, 2000 | $24,570 | $1,619.33 | $29,742.48 |
| ii) | Legal-Peterson Stark | Aug
14, 2000 | - | $ 259.22 | $
277.36 | | iii) | Appraisal-Rack | Jul
11, 2000 | $18,000 | | $19,260.00 |
| iv) | Appraisal-Lepage | Aug
1, 2001 | $5,760 | | $ 6,163.20 |
| *GST and PST are included in i and
ii. GST only is included in iii. PST only is included in iv. | [5]
The respondent has previously paid $32,065.88 to the claimant: $26,715.88 for
legal fees submitted by Peterson Stark between August 30, 1995 and May 20, 1999
and $5,350.00 for appraisal costs submitted by Mr. Rack on May 27, 1999. 2. GST [6]
The claimant conceded that it was a GST registrant and therefore under section
5(5) of the Tariff no GST is payable on any account. 3. Other
experts [7] There were also a number of accounts from
other consultants. Certain of these were agreed to be disturbance damages rather
than costs. The ones presented for costs are as follows:
| Type of expert | Expert | Date | Invoice
(without GST) | |
| | v) | Acoustical | BKL
Consultants | Nov 26, 1999 | $ 250* |
| vi) | Land Surveyor | Cameron | Sept
28, 1999 | $ 25* | | vii) | Quantity
surveyor | Costex | Mar 2, 2001 | $
468.75** | | | | Mar 2,
2001 | $ 881.25** | | | | Jul
4, 2001 | $2,535.80 net** | | viii) | Land
planning | Genesis | Jan 11, 2000 | $
455* | | | | Feb 9, 2001 | $
911* | | | | Apr 2001 | $
205* | | | | Apr 2001 | $
369* | | ix) | Engineer
Hunter | Laird | Dec 31, 1996 | $3,675 |
| | | Mar 3, 2000 | $
404.65 | | x) | Surveyor | Papove | August
2, 2000 | $1,153.75* | | xi) | Geotechnical | Terra
Engineering | Nov 17, 1999 | $1,040* |
| | | Mar 10, 2000 | $
540 | [8] These experts had prepared reports
with respect to the extra costs incurred by the claimant in developing the property
as a result of the pipe. The respondent agreed to certain of these accounts that
are marked with a single asterisk including BKL, Cameron, Genesis Development,
Papove, and the first Terra Engineering account, provided that it is in fact for
the report dated October 28, 1999 provided by Terra Engineering. These accounts
are therefore allowed, subject to confirmation by the claimant as to the November
17, 1999 Terra Engineering account being for the October 28, 1999 report. These
invoices total $4,408.75. As noted above no GST is payable. [9]
The respondent also conceded the Costex invoices which are marked with a double
asterick. There were three of these attached to the schedule prepared by the claimant.
The schedule appeared to double count a $500 advance but the actual invoices were
as follows: March 2, 2001 for $468.75 plus GST, March 2, 2001 for $881.25 plus
GST and July 4, 2001 for a net sum of $2,535.80 plus GST. The third invoice appears
to be a final fixed price fee plus a further fee for additional services plus
actual disbursements. This invoice credits the claimant with payment of the first
two invoices that were advances or partial payment on the fixed fee. The total
account including disbursements is thus $3,885.80. No GST is payable. [10]
The respondent submitted that other accounts lacked sufficient description to
decide whether they were appropriate cost items. This included two accounts from
Hunter Laird, (one of which the respondent had not received at the time of the
hearing) and the second account for Terra Engineering. Having reviewed these accounts,
I agree with this submission and defer the allowing of costs on these three invoices
at this time pending better descriptions of the services rendered. 4. Tariff
Accounts 4.1 Preliminary Application [11]
There was a preliminary objection made by the Respondent that in the circumstances
of this case it was difficult to proceed with a section 48 review when there were
accounts from one law firm and an appraiser for substantial work done leading
up to the fifth scheduled compensation hearing at which time the claimant changed
law firms. There is also a Tariff appraisal account from a second appraiser who
was retained through the second law firm. The respondent says that, at this stage,
prior to the compensation hearing, it is difficult to determine which work of
the first law firm and the first appraiser was reasonably necessary when the claimant
chose to abandon this work. [12] The claimant's response
was twofold. First, the purpose of section 48 costs are to level the playing field
by reimbursing the owner for costs that are necessarily incurred to assert its
claim for compensation from time to time prior to the compensation hearing. Three
of the Tariff accounts have been outstanding for over one year and the authority
has not made any payment. Second, the accounts that were being presented at this
time were for work that had not been abandoned. The same experts were being used
except that there was a second appraiser, Mr. Wilts, with Royal Lepage. Mr. Wilts'
work covered not only the reduction in value as a result of the taking (that had
previously been done by Mr. Rack) but also an estimate of disturbance damages.
According to the claimant, these two accounts were the only ones that contained
any duplication. No legal accounts for new counsel were being presented at this
time. [13] Section 48(5) 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. I
note that this section is discretionary as to whether an order is to be made.
I indicated that the cost hearing should continue and that I would bear the respondent's
objection in mind in considering the various circumstances in this matter. [14]
This board has previously emphasized the importance of advance payment of costs
under section 48 in providing a more level playing field that enables owners "to
retain professional expertise comparable to that available to the expropriating
authority". See Roadmaster Auto Centre Ltd. v. Burnaby (City) (1996),
58 L.C.R. 305 at 310. On the other hand, the respondent has submitted that in
the circumstances of counsel (and likely the appraiser) being replaced so close
to the fifth scheduled hearing date, the respondent should not have to pay those
costs for work that became redundant and was in essence thrown away. Under section
45(3) such costs might be characterized as not being necessarily incurred
to assert the claim for compensation. I note the comments of the former chair
of this board, J.H. Heinrich, in Hruschak v Vernon (City) (1991), 46 L.C.R.
230 at 237: In the absence of extraordinary
circumstances, an expropriating authority should not have to pay for a second
legal opinion. An owner is free to seek a second opinion but the cost will be
borne by that owner and not by the expropriating authority." In
this case I was not provided with much evidence as to the circumstances surrounding
the change in counsel in order to consider whether the work was reasonably necessary
when it was incurred or whether there were explanations that might be characterized
as providing extraordinary reasons. However, given that costs are now under the
Tariff this lack of evidence is less of a problem. [15]
Under a cost regime it is the claimant who is entitled to the costs, not the lawyer
or the appraiser who did the work. It is clear from a review of the legal tariff
schedule that a claimant is entitled to only one overall Tariff account for legal
costs no matter how many law firms it has retained. This means that for those
items in the Tariff that overlap, with work done by more than one lawyer, I only
have to decide how many units the claimant is entitled to for that item. I do
not have to try and allocate the units between the different law firms. [16]
In this application I have only one Tariff legal account from Peterson Stark.
However, in due course, a further Tariff account from the second law firm, Cox
Taylor, will be submitted to the authority. It is true that it would be easier
to wait until after the final compensation hearing in order to consider all the
legal costs together, but this does not meet the purpose of providing advance
payment of costs to the claimant. In Chan v Vancouver (City) unreported,
January 22, 2001, E.C.B. # 72/00/197, the summary nature of section 48 reviews
is underscored, together with the problems of applying the Tariff in this situation.
Rather than trying to make detailed allocations as to which items claimed by Peterson
Stark have been wasted, I will treat this Tariff account in a summary manner as
including legal work that was necessary in preparing for the compensation hearing,
even though it may be second counsel's work on a particular item that was in fact
used by the claimant to ultimately assert its claim at the compensation hearing. [17]
I have also been provided with two separate Tariff accounts for appraisal costs
by two different appraisers. Prior to the Tariff being introduced, this board
has sometimes allowed as reasonable costs more than one appraisal account billed
to the claimant where the claimant has established that at the time that each
expert was retained it was a necessary and reasonable expense. When more than
one appraisal account has been allowed, there has sometimes been a reduction of
one or all of the accounts. See for example Bill's Frontier Restaurant Ltd
v. British Columbia (Minister of Transportation and Highways) (1996), 58 L.C.R.
204. The board has also sometimes refused the costs of more than one report where
the claimant obtained successive and duplicative appraisals. See Hampton Investments
Ltd. v. British Columbia (Minister of Transportation and Highways) (1998),
64 L.C.R. 284 (B.C.E.C.B.). In the present case while the claimant tried to emphasize
that Royal Lepage's report included extra analysis with respect to disturbance
damages, at the heart of both appraisals was a determination of the reduction
in market value of the remainder using the subdivision development approach. I
have not been persuaded at this stage that retaining the two appraisers was necessary
to the claimant to assert its claim. Moreover, under the Tariff, it appears that
similarly to the Tariff for legal costs, the claimant is only entitled to one
Tariff account for appraisal costs, regardless of how many appraisers it may have
retained. In any event, in treating the Tariff accounts for appraisal costs in
a summary manner, at this stage I am only prepared to allow one Tariff account
for appraisers. I will treat the two Tariff accounts as a single Tariff account
and review the evidence I have received for both accounts. 4.2
Appropriate Scale [18] The Tariff accounts
for the legal and appraisal costs for Peterson Stark and Mr. Rack are both presented
at Scale 3. The Tariff account for the appraisal costs for Royal Lepage is presented
at Scale 2 although the unit value listed is that for Scale 3. In his two affidavits
for legal and appraisal costs respectively Mr. Melville states that this matter
presented an unusual level of complexity because it was a partial taking and the
taking of an easement rather than a fee simple taking. In addition, since the
property was imminently ripe for development and was in the process of being developed
when the section 3 agreement was signed, there were various disturbance damages,
including loss of developer's profit, that would not have been incurred but for
the taking. In its submissions, the claimant reiterated these reasons for supporting
Scale 3. The respondent disputed Scale 3 and submitted that Scale 2 was appropriate
for the purpose of advance costs. [19] This board has previously
canvassed the difficulty of deciding the appropriate scale on a section 48 cost
claim where there is often relatively little information. See Chu v School
District No. 36 (Surrey) (2001), 72 L.C.R. 89 (B.C.E.C.B.). Since this application
was heard only two weeks before the compensation hearing was scheduled to be heard
I have the advantage of having the appraisal reports filed by both Mr. Rack and
Royal Lepage. The Royal Lepage report also includes several other expert reports
on various disturbance damages. Having reviewed the pleadings and these two reports,
in my opinion, the presumption found in section 4(3) of the Tariff in favour of
Scale 2 for both legal and appraisal accounts has not been rebutted for the purpose
of this section 48 cost review. This issue might be reconsidered following the
compensation hearing if a section 45 review becomes necessary.
4.3 Tariff Accounts - Legal [20]
The Tariff account for legal costs from Peterson Stark dated July 11, 2000 is
for the period from June 28, 1999 (when the Tariff came into force) until July
11, 2000. It claims units for 12 items, and as revised in Mr. Melville's Affidavit
is as follows: | 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 | 20 |
| 4 | Instructing
expert witness if witness prepares a report, for each expert (maximum of 3 witnesses,
without leave)
6 experts x 5 | | 1 | 5 | 30 |
| 5 | Every
process for commencing and Prosecuting a claim before the board | | 1 | 10 | 10 |
| 6 | Process
for obtaining discovery and inspection of documents | | 1 | 10 | 10 |
| 7 | Process
for giving discovery and inspection of Documents | | 1 | 10 | 10 |
| 10 | Preparation
for examination of a person coming under Item 11 for each day of attendance
(b) by party being examined 3 days | 2 | | | 6 |
| 11 | Attendance
on examination of a person for discovery, on affidavit, for each day
(b) by
party being examined 3 days | 5 | | | 15 |
| 12 | Preparation
for application referred to in Item 13, for each day of hearing
Opposed 5
1/2 days x 1.5 | 3 | | | 7.5 |
| 13 | Interlocutory
application for each day
If opposed 5 1/2 days x 2.5 | 5 | | | 12.5 |
| 16 | Preparation
for attendance referred to in Item 17 for each day
4 1/2 days x 1.0 | 2 | | | 4 |
| 17 | Attendance
at a pre-trial conference for each day
4 1/2 days x 1.5 | 3 | | | 6.0 |
| 21 | Process
for setting down claim for hearing | 1 | | | 1 |
| | | | | |
| | | | | |
| Total | | | | 132 |
I was provided with Mr. Melville's accounts to his
client for this period which lists the dates and activities performed for a total
of 126 hours and $25,167 in fees and $1,878.55 in disbursements plus applicable
taxes over the approximately one year period. The disbursements on the Tariff
account were the same as in the accounts to the client at $1,878.55. [21]
Mr. Melville's Tariff account claims the maximum amount on each item where there
is a range of units and also claims for both applications and case management
discussions that occurred on the same day. This account is dated July 2000 and
predates the board's decisions under the Tariff that set out some guidelines for
claiming units under different items. See for example Chu v School District
No. 36 (Surrey) (2001); Budd v. British Columbia (Minister of Transportation
and Highways) (2001), 72 L.C.R. 114; Topping v. British Columbia (Minister
of Transportation and Highways) (2000), 73 L.C.R. 72 and Ingham v Creston
(Town) March 21, 2001 (unreported) ECB # 30/93/203. [22]
The first consideration is that considerable work was done by Peterson Stark before
the Tariff came into effect and substantial payments have been made on invoices
presented for this work. This work done pre-Tariff is not formally the subject
of review on this advance cost application although it would have to be considered
as part of a review of total costs if there is a final section 45 review after
the compensation hearing. While the necessity for and reasonableness of pre-Tariff
costs are not at issue in this application, this board has held that in deciding
how many units it is reasonable to allow in a Tariff account there must be consideration
of pre-Tariff work to avoid duplication of costs and as a measure of overall reasonableness.
See Chu v School District #36 (Surrey). [23] In
this case I have few details about the work done on this matter between August
30, 1995 and May 20, 1999 that was billed in legal accounts submitted for payment
by Peterson Stark in order to allocate it among items to be considered under the
Tariff accounts presented. I do not know the total for the legal accounts, nor
the breakdown on fees, disbursements and taxes. I do know that $26,715.88 has
been paid on account of the legal accounts that were submitted prior to the Tariff,
which likely represents very approximately at least 100 hours of legal work. The
only other information I have is contained in the Affidavit of Dean O'Leary, a
partner of Farris Vaughn Wills and Murphy, solicitors for the respondent, sworn
on June 25, 1999 and filed with the board on the same date. This Affidavit sets
out a partial chronology of events in the file including several dates when the
respondent made Demands for Discovery of Documents, the dates when the respondent
delivered a List of Documents and when the claimant delivered its third List of
Documents, and the date when an Examination for Discovery of the representative
of the claimant was held. All of these events obviously occurred before June 25,
1999 and do not fall under the Tariff. [24] A second consideration
raised by the respondent is that a considerable amount of the work of the first
firm was unnecessary because of the history of delay on this file with multiple
adjournments and unnecessary applications. The respondent says that it should
not have to pay for this work that was in effect thrown away. When the compensation
hearing was adjourned by the claimant a number of times over the course of this
period, I am satisfied that there would inevitably be some duplication of work.
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. This argument will be considered in more detail
below with respect to a number of applications leading up to an application for
the adjournment of the fourth scheduled hearing date in February 2000. I also
note that under section 47 of the Act there is provision for interest penalties
if the board decides that there has been an unreasonable delay in proceedings
under this Act. [25] I will deal first with some of those
items on which work was done pre-Tariff including correspondence and conferences,
prosecuting a claim, and discovery of documents. Section 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". I have reviewed the hours recorded by
Mr. Melville during the relevant time, and considered the time that must have
been spent pre-Tariff given the information in Mr. O'Leary's Affidavit. I note
that neither the time spent pre-Tariff nor the advance payment of costs that have
already been paid is to be directly offset against the amount claimed post-Tariff.
See Chu v School District #36 (Surrey). Rather the time spent pre-Tariff
is to be considered as one of the factors in determining the reasonableness of
the units allowed in this review. At this stage I allow 8 units for item 1, 3
units for item 5, no units for item 6, and 2 units for item 7. [26]
With respect to item 4, instructing experts, I note that the Tariff only provides
for instructing a maximum of three experts unless there is leave of the board.
This issue was not specifically addressed and at this stage I am only going to
consider this item with respect to three experts. It appears that one or other
of the appraisers are the primary expert(s) with all the other experts being secondary.
Mr. Rack was retained in 1997 and as noted below billed for 57 hours prior to
the Tariff accounts. Some of this time was for discussions with and review of
material from Peterson Stark. I have reviewed Mr. Melville's account to his client
with respect to references to all of the experts since June 1999. I also note
the other expert reports and the invoices they have submitted. Doing the best
I can with the limited information at this stage and keeping in mind Mr. Melville's
work with Mr. Rack pre-Tariff, on a scale of 1 to 5, I allow 3 units for instructions
with respect to an appraiser. For instructing two other experts I allow 2 units.
Thus, a total of 7 units are allowed for item 4. [27] There
are some items that occurred after June 1999 and did not include work pre-Tariff.
These include items 12, 13, 16, and 17 for preparing for and attending interlocutory
applications and pre-trial or case management conferences. As a result of the
claimant having requested an adjournment of the third compensation hearing date
scheduled for June 21, 1999, the respondent brought a Notice of Motion on June
30, 1999 asking the board to fix dates for the claimant to amend its pleadings
and deliver expert reports. The board did direct that the claimant amend its pleadings,
complete discoveries and file expert reports by specified dates. The claimant
did not comply with all of these directions and there was another Notice of Motion
and three case management or pre-trial conferences sought by the respondent attempting
to get the claimant to comply with the directions of the board from June 1999.
There was also one Notice of Motion brought by the claimant to amend its pleadings
several months after the date specified by the board in June 1999 and less than
two months before the fourth scheduled hearing date. Finally there was a Notice
of Motion of the claimant seeking an adjournment of this fourth scheduled compensation
hearing because the expert reports had not been provided. (I also note that claims
have been made for two interlocutory hearings and two case management conferences
on the same dates. These were heard in less than 2 1/2 hours and in the circumstances
only one matter can be claimed.) While there may be various explanations for the
delays in amending pleadings, holding discoveries, and providing expert reports,
having reviewed the board file, I am not satisfied at this stage that the costs
for these applications and the case management conferences were necessarily and
reasonably incurred by the claimant to assert its claim for compensation or damages.
I allow the costs for preparing and attending the June 30, 1999 application only
at 4 units. [28] Similarly with respect to item 21 setting
this claim down for the fifth scheduled hearing date, when three of the adjournments
were at the request of the claimant, I am not satisfied at this stage that this
is a cost that was necessarily and reasonably incurred by the claimant to assert
its claim for compensation or damages. No units are allowed. [29]
Finally with respect to item 10 and 11 for further examination of the representative
of the claimant. As noted above the claimant had been examined prior to the Tariff
account in February 1999. According to the affidavit evidence of the respondents
in the board file there were outstanding questions and the representative was
not responsive during the continuation of the discovery in September 1999. An
application to the board was necessary to secure further dates for discovery.
At this stage I allow costs for preparing and attending the examination on September
13, 1999 only for a total of 7 units. [30] Thus the total
units allowed at this stage with respect to the legal Tariff account is 31 units
at scale 2 or $4,340. No GST is payable but the appropriate PST is payable on
this amount. These costs are payable to the claimant for advance legal costs falling
under the Tariff. [31] With respect to disbursements I
have no information on what costs may have been thrown away as a result of the
adjournment of the fifth scheduled hearing date and change of counsel. As a result,
I award $500 at this time pending further review at a section 45 hearing, if necessary.
In order to assist counsel to settle these costs I note that I would allow any
necessary photocopies at $.15 a page and faxes at $.20 a page.
4.4 Appraisal Tariff Accounts [32]
The Tariff account for Mr. Rack listed the following items:
| 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 | 20 |
| 2 | Inspect
and research subject property | | 1 | 30 | 30 |
| 3 | Market
research, including all necessary attendances | | 1 | 20 | 20 |
| 4 | Inspection
of comparable properties | | 1 | 20 | 20 |
| 5 | Analysis
of data and preparation of a report or reports | | 1 | 60 | 60 |
| Total | | | | 150 |
[33] I also have Mr. Rack's actual invoices to the
claimant dated February 7, 2000, March 6, 2000, and August 15, 2000 in the total
amount of $17,760 plus GST. Five hours of time on these invoices or $750 predated
the Tariff coming into effect. The attached time sheets total 118 hours. In his
Affidavit, Mr. Melville has allocated this time for the purpose of preparing the
Real Estate Appraisal Tariff claim amongst the five items as follows: unit 1,
37 hours; unit 2, 6 hours; unit 3, 11 hours; unit 4, nil hours; unit 5, 60 hours.
Despite allocating nil hours to unit 4, I note that Mr. Melville has claimed the
maximum number of units. [34] Attached to Dean O'Leary's
Affidavit of June 25, 1999 was an invoice from Mr. Rack dated May 21, 1999 in
the amount of $7,980 plus GST, together with Mr. Rack's time sheets for 1997,
1998 and the first five months of 1999. The time sheets indicate the dates, what
was done and the time spent. The total hours listed on the time sheets comes to
57. The respondent has paid $5,000 (for approximately 35 hours) towards this account.
The descriptions on the time sheets appear to include time for activities in each
of the five items listed above although Mr. Rack did not finalize his report until
after the Tariff came into effect. As indicated above the reasonableness of this
earlier work is not under review in this application but it does have to be considered
in deciding the appropriate units to be allowed in this application. [35]
The Tariff account for Royal Lepage listed the following items:
| 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 | 5 |
| 2 | Inspect
and research subject property | | 1 | 30 | 10 |
| 3 | Market
research, including all necessary attendances | | 1 | 20 | 12 |
| 4 | Inspection
of comparable properties | | 1 | 20 | 5 |
| 5 | Analysis
of data and preparation of a report or reports | | 1 | 60 | 16 |
| Total | | | | 48 |
[36] The back up documentation to this Tariff account,
the actual Royal Lepage invoice to the claimant dated June 29, 2001, was for $5,000
plus (estimated) disbursements and GST. Neither the number of hours nor the hourly
rate is indicated. [37] Prior to the Tariff the board has
considered actual appraisal accounts in a number of cases. While each case turns
on its own facts, a review of the appraisal issue(s) and the number of hours and
fees that were allowed on a final section 45 review, including attendance at a
hearing, is of some assistance. See, for example, Ferancik v. Langley (Township)
(1997), 62 L.C.R. 291 where the total fees (and number of hours) that was eventually
allowed as actual appraisal costs was significantly less than what have been billed
or claimed on behalf of Mr. Rack in this advance payment of costs application
(that does not include the pre-Tariff work performed between 1997 and 1999, nor
the costs of attending a hearing). [38] However, the primary
consideration at this stage is that, in a similar fashion as the Tariff legal
account, approximately 35 hours of actual appraisal costs have already been paid
for pre-Tariff work. This has some bearing on the total number of units that can
now be claimed under the Tariff, although the reasonableness of this earlier work
is not under review in this application. A second consideration is that Mr. Rack
was retained over a total of four years, from 1997 to 2000. When the compensation
hearing was adjourned by the claimant a number of times over the course of this
period, similar to the Tariff accounts for legal work, it is likely that there
was some duplicative work by Mr. Rack for which the respondent is not responsible.
At this stage, after reviewing the affidavit evidence and having seen the two
reports that were produced, I allow 5 units for item 1, 5 units for item 2, 9
units for item 3, and 18 units for item 5 for a total of 37 units at Scale 2 or
$3,700. This payment is to the claimant for Tariff appraisal costs incurred up
to August 1, 2001, but is not specifically allocated as between accounts rendered
by the two appraisal experts retained. [39] There was no
claim for disbursements on either Tariff account. [40]
The Tariff account for Mr. Rack included GST. As indicated above as a result of
sections 5(4) and (5) of the Tariff no GST is payable in this case. The revised
copy of Mr. Rack's Tariff account that was attached to Mr. Melville's affidavit
did not include PST. The Tariff account for Royal Lepage had appropriately omitted
the GST but for some reason included PST which appraisers are not obliged to collect.
I was provided with the Royal Lepage invoice to the claimant that did not include
any PST. In these circumstances, section 5(1) of the Tariff provides that no PST
can be charged on a Tariff account. Therefore no GST or PST is payable on the
Tariff appraisal costs that are allowed. [41] Finally,
I would note that, although I appreciate the circumstances surrounding this application
were unusual, it would have been preferable if counsel had agreed on whatever
items they could ahead of time and clearly identified the remaining items that
were in dispute at the commencement of the hearing. |
