March 20, 2003,  E.C.B. 48/95/234

REASONS FOR DECISION

1.  APPLICATION

[1]  By Decision Dated December 19, 2002, The Expropriation Compensation Board Issued eight orders respecting compensation in this matter, one of which (after correction of a typographical error) states:

(7) Subject to item (2), the respondent shall pay to the claimant pursuant to section 46(4) additional interest on the amounts in items (1) and (4) from and including the date of the initial advance payment to the date of determination of compensation, after adjustment to take into account moneys paid by the respondent to the claimant, at the annual rate of 5%.

[2]  By Notice of Motion filed on January 24, 2003, the respondent applied to the board for an order amending item (7), supra, to substitute the words "amounts in items (1) and (4)" with "amount in item (1)"

[3]  Item (1) of the board's orders states:

(1) The respondent, Greater Vancouver Sewerage and Drainage District, shall pay to the claimant, 415528 B.C. Ltd., compensation pursuant to section 31 and (40)(1)(a) for the market value of the land partially taken and the loss in value to the remaining land of $165,073.

[4]  Item (4) of the board's orders states:

(4) The respondent shall pay to the claimant compensation pursuant to sections 34 and 40(1)(b) for disturbance damages and business losses of $43,703.

[5]  Section 46(4) provides:

(4) If the amount of the payment under section 20 (1) or (12) or otherwise is less than 90% of the compensation awarded, excluding interest and business loss, the board must order the expropriating authority to pay additional interest, at an annual rate of 5%, on the amount of the difference, calculated from the date that the payment is made to the date of the determination of compensation.

[6]  Paragraph 230 of the board's decision states:

[230] Excluding the business loss portion, the board has awarded the claimant compensation in the amount of $165,073. The respondent's advance payments totaling $121,000 calculate to 73.3% of the compensation awarded. Accordingly, the claimant is entitled to additional interest under section 46(4).

[7]  The hearing of this application took place in Victoria on February 28, 2003 and lasted somewhat under two hours.

2.  THE PARTIES' POSITIONS

[8]  The respondent submitted that the board incorrectly interpreted or applied s. 46(4) and that the board's order was inconsistent with its reasons as expressed at paragraph 230. The effect of the respondent's application would be to eliminate the requirement that the respondent pay additional interest of 5% on $43,703 awarded to the claimant as business losses. The respondent submitted that this exercise would not involve reopening the hearing or re-hearing argument since this issue was not the subject of submissions during the hearing.

[9]  The claimant opposed the application on the grounds that the board has no inherent or statutory power to reconsider its own decision. In essence, the claimant submitted that the board was functus officio. Further, the claimant submitted that the board's decision was correct and not ambiguous.

[10]  The respondent sought to distinguish an order under s. 46(4) from a determination within the general jurisdiction of the board under s. 26. The respondent contended that the former constitutes an administrative determination prescribed by statute, as opposed to a quasi-judicial determination issued after hearing evidence.

[11]  Stressing that this distinction is important when considering the policy behind the jurisprudence governing finality of decisions, the respondent referred the board to the Supreme of Canada decision in Chandler v. Alberta Association of Architects, [1989] 6 W.W.R. 521, in which the court considered the principle of functus officio as it applied to administrative tribunals.

[12]  In Chandler, the Court set out the general rule that a court or tribunal cannot reopen a decision simply because "the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances" (at p. 541). The Court noted two exceptions to the rule that permit revisiting the decision:

1. There was a slip in drawing up the order; and
   
2. There was an error in expressing the manifest intention of the court.

The policy behind the general rule is based on there being full right of appeal, with the appellate court having the ability to hear and correct the decision and the tribunal having the ability to correct slips or errors.

[13]  The Supreme Court of Canada noted that the rule has a different application if there is no full right of appeal from the decision of the tribunal. If an appeal is limited to questions of law, the application of the rule must be more flexible and less formalistic. Therefore, in that circumstance, a tribunal may revisit certain aspects of the decision if those aspects would not be reviewable on appeal, or if the tribunal had failed to address an issue within its statutory mandate.

[14]  The respondent's submission was three-fold:

a) although the board erred in interpreting s. 46(4) it retains jurisdiction to fulfill its statutory mandate by correcting the error of interpretation;

b) item (7) of the orders is inconsistent with the reasons of the board as set out in paragraph 230 of the decision; and

c) the inconsistency amounts to 'an error in expressing the manifest intention of the court' and, therefore, the exceptions to the general rule apply to allow the board to correct the order in item (7).

[15]  The claimant has requested that the board issue a certificate pursuant to s. 26(3) of the Act. The respondent contended that it is inconsistent for the claimant to argue that the board is functus officio while at the same time requesting a certificate.

3.  THE BOARD'S CONCLUSION

[16]  Under the Expropriation Act, R.S.B.C. 1996, c. 125, there is a full right of appeal. Accordingly, the general rule governing functus officio applies and the board can only revisit a decision if there has been a slip or error, within the exceptions noted above.

[17]  The respondent attempted to avoid the application of the rule by characterizing the board's decision with respect to s. 46(4) as 'administrative' rather than 'quasi-judicial'. The board does not accept that argument. In order to revisit the decision in any manner, the board would have to do so under the guise of 'slip or error'. The respondent's argument under a) above that the board retains jurisdiction to fulfill a statutory mandate does not fit within the exceptions and the board rejects it as grounds for revisiting the issue.

[18]  The board also does not accept the respondent's arguments under b) or c) above. If the board's reasoning or interpretation was inconsistent, that would not amount to a slip or error. The board is mandated to apply the additional interest provision, whether or not the parties made submissions on how that is to be calculated.

[19]  In Sequoia Springs West Development Corp. v. British Columbia (Minister of Transportation and Highways) (2001), 71 L.C.R. 315, the board granted an application to amend an order. In that case, the respondent had inadvertently omitted inclusion of an advance payment. Both parties agreed there had been an omission. The claimant opposed the application on the grounds that the board was functus officio. After referring to Chandler, the board followed the reasoning of the Ontario Divisional Court in Re Grier and Metro International Trucks Ltd.(1966), 133 D.L.R. (4th) 236, which applied the 'flexible' approach to cure a mistake made by the parties. The board found it had discretion to correct "one small mistake in the facts that was common to both parties." In the board's view, the present case is clearly distinguishable.

[20]  The respondent made reference to the claimant's application to the board to issue a certificate under s. 26(3) in support of a contention that the board is not functus officio. In the board's view, that certificate is not similar to rendering a final decision or entering judgment. Although s. 26(3) mandates the board to issue a certificate, in practice it is issued only at the request of a party, for the purposes of filing in the Supreme Court Registry. In this case, the board rendered its final decision including the enumerated orders on December 19, 2002. Nothing further needed to be done to perfect that decision. The appeal period commenced immediately.

[21]  If the Board erred as alleged, it is an error beyond simple slip or error and the board is without jurisdiction to re-open the decision. The board dismisses the respondent's application on the grounds that the board is functus officio, without jurisdiction, to deliberate on the issues raised.

4.  COSTS

[22]  The parties briefly raised the question of the claimant's costs of this application. The claimant's position was that, if the board found that it was functus officio, this hearing should be treated as a new matter to which a separate bill of legal costs under the Tariff of Costs Regulation, B.C. Reg. 189/99 (the "Tariff") would apply. The respondent maintained that, whatever the outcome, this application was a continuation of the original compensation claim and should not be treated as a new matter for the purpose of determining tariffed costs.

[23]  The board considers that the way in which the claimant's costs of this application should be treated is a question more appropriately addressed at a final review of costs under s. 45 of the Act, should one become necessary. Accordingly, it makes no order as to costs.