REASONS FOR DECISION

INTRODUCTION

[1]    This is an application brought by the claimants for a review of their bills of costs and a final award of costs under section 45 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). The costs at issue arise out of partial takings from each of the five properties owned by the claimants by the respondent, the City of Penticton, on March 12, 2001. The costs claimed are in respect of legal, appraisal and other professional services provided to the claimants between November or December 2000 and July 2003, including the costs of this application. All of these costs were incurred after the Tariff came into effect. At the beginning of the hearing I was told that the claimants' own actual expenses as well as the disbursements on the legal and appraisal bills of cost had settled. The costs for this application were claimed separately as a joint cost by the five sets of claimants.

[2]    An additional 3.5 hours per claimant (for a total of 17.5 hours) was claimed outside the Tariff for the appraiser, Danny Grant, to assist counsel in cross-examination of the respondent's appraiser. At Mr. Grant's hourly rate of $200 this amounted to $700 per claimant or $3,500 in total.

[3]  The total costs before me on this final review are as follows:

[4]  A general advance payment of $50,000 on account of costs of all of the claimants, including an additional claimant, Neta Warner, had been made prior to the compensation hearing. This amount had been allocated by the claimants in the sum of $8,800 for each set of property owners in this application and somewhat less for Ms. Warner.

[5]  The main issue before me in this hearing is the appropriate number of units on the five legal and appraisal bills of costs when the five claims were heard together along with Ms. Warner's claim. A secondary issue was whether the appraiser, Mr. Grant, could bill time outside the Tariff for work on advising counsel on the cross-examination of the respondent's appraiser.

[6]  I was provided with lengthy affidavits from Mr. Burke for each set of claimants in this application. Mr. Burke had been counsel for the claimants at the compensation hearing. The affidavits stated that a general file had been opened and the work in that file had been split between the six property owners, including Neta Warner. There also had been separate files for each set of property owners in which some individual work had been done. The affidavits described some of the work that had been done and attached the correspondence files, the lists of documents and the interrogatories for each of the different claimants. Burke Law Corporation's time records for the general file and each set of claimant's individual file were also provided. Mr. Burke also gave viva voce evidence and was available for cross-examination at the request of the respondent.

[7]  Mr. Grant, the appraiser for the claimants, also provided one affidavit that set out what he had done, the qualifications of people in his firm who had worked on this file and the time records for each set of claimants. These time records were more general than the detailed time records provided by Mr. Burke. Mr. Grant was also a witness at the cost hearing at the request of the respondent.

[8]  The board file provided information about the various applications, the pre-hearing conferences and the hearing itself. It also contained Mr. Grant's appraisal reports for all six properties and those of the arborist, Mr. Hinter, for five of the six properties.

2.  BACKGROUND

[9]  The claimants are all owners of residential properties on Government Street, in Penticton, British Columbia. This case involved a partial taking of a strip of land from the front yards of each of the six properties owned by the claimants (including Ms. Warner) by the respondent, the City of Penticton, on March 12, 2001 as part of a project to widen Government Street. The claimants claimed for the market value of the land and the improvements that had been taken and injurious affection to the market value of the remainders of their properties. They also claimed for personal losses or disturbance damages that were directly attributable to the taking or resulted from the project. See the board's reasons for decision with respect to compensation at (2003), 79 L.C.R. 161. In this decision, one claimant, Edith Ferguson, was awarded her legal and appraisal and other costs under section 45(4) of the Act and the Tariff of Costs Regulation, B.C. Reg. 189/99 at Scale 2. The issue of entitlement to costs for the other claimants was addressed in a subsequent decision, following written submissions. This decision is presently unreported except on the board's website: see decision ECB #237, May 1, 2003. The five claimants in this decision were awarded 100% of their costs until one week after the second advance payment on March 20, 2002 and 65% after that date. The legal and appraisal costs were awarded at Scale 2. The costs of one of these original claimants, Neta Warner, are not being sought in this application.

[10]  The claims, advance payments and amounts awarded to each of the present sets of claimants in the compensation decision were as follows:

3.  MULTIPLE CLAIMANTS

3.1  Parties' positions

[11]  The claimants concede that some of the legal and appraisal work was done collectively and that in Ingham v. Creston (Town) (2001), 73 L.C.R.129 (B.C.E.C.B.) the board suggests that only one bill of costs for such items is to be shared between the claimants. However, they say that where different work was done for different claimants they are entitled to separate bills of costs. Mr. Burke, counsel for the claimants at the compensation hearing, and Mr. Grant, the appraiser for the claimants, provided evidence that some different work was done for each of the six sets of property owners. The claimants point to para 39 of Ingham where the board said that if different work was done for one or more persons, there should be separate allowances of costs for that item.

[12]  The main item that the claimants disputed in the present case was item 19, attendance at the hearing. The claimants say that the Tariff did not contemplate consolidated hearings. In this case the claimants agreed for efficiency reasons to run a consolidated hearing in which the experts testified once, referring to each of the six properties in turn. The combined hearing occupied nine days but Mr. Burke testified that in his opinion each claimant would have needed five days if their claim had been heard separately. The claimants point out that in moving away from actual reasonable costs to the Tariff, the reviewer is applying a rougher and more general standard that, for example, provides for fixed units no matter how long certain activities take. Where there is range of units that are possible, one of the tests is how much time an average lawyer would need rather than how much time a particular lawyer in fact spent. In considering the number of units for a hearing the claimants submit that the reviewer could apply the spirit of the Tariff by allowing each claimant to claim the units for a five day hearing they would have needed if their claim had been heard separately.

[13]  The respondent opposed many of the multiple claims brought by each set of claimants. There was significant overlap for many items in both the legal and the appraisal bills of costs between the different sets of claimants. The same lawyer and appraiser represented all the sets of claimants and the claims were virtually identical but for minor variations in the subject properties and the personal claims which were largely unsuccessful. Where the same lawyer does work in common for multiple plaintiffs then one bill of costs is shared between them. 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 (Ont. Ct. (Gen. Div.)).

[14]  The respondent pointed to the case of Budd v. British Columbia (Minister of Transportation and Highways) (2001), 72 L.C.R. 114 (B.C.E.C.B.) which discussed at para 50 and 51 the continuing requirement under the Tariff that only reasonable costs be allowed. In this case the claimants in submitting separate claims for each set of claimants have claimed costs totalling over $260,000 (this sum does not include the costs of one of the six sets of claimants at the compensation hearing nor the personal expenses and disbursements which have settled). These costs were for 5 claims each of which resulted in awards of between $3,500 and $8,700 which were approximately the same as the advance payment, but for Ms. Ferguson's award which was higher. The respondent submits that the total costs claimed are greatly disproportionate to what was involved in this case. In this regard the respondent referred me to the remarks of Vice Chair Watt, Q.C. in Kliman v. Board of School Trustees, District No. 63 (Saanich) (1992), 48 L.C.R. 204, at pp. 208-209:

... the person conducting the review is required to take into account "all relevant circumstances". There will be cases where there is very little in dispute except the land value. The main item in dispute may be which valuation approach to use. The effort that ought to be put into resolution of that issue surely must vary between cases where the value of the land involved is say, $5,000,000 and others where it is only, say, $75,000.

... Claimants must be given their "day in court", but a compensation scheme where costs that frequently approach or exceed the amount involved is a scheme that will inevitably attract criticism.

Finally the respondent pointed out that the costs claimed were greatly in excess as to the time actually spent and fees billed to the claimants. Ms. Ferguson who was entitled to 100% of her costs under the Tariff was claiming about $32,700 in costs for fees and yet the evidence appeared to be that her share of the billed time was 75 hours for which she had been billed about $18,700 in fees. Mr. and Mrs Clement whose costs for the hearing had been reduced by 35% were claiming about $26,700 in costs for fees and the evidence appeared to be that their share of the billed time was about 64 hours for which they had been billed about $16,300. Other sets of claimants' claimed costs and fees billed were similar.

[15]  Further, the respondent submitted that the various criteria under section 45 (10) of the Act did not justify higher costs. The issues in the case were not that complex; Mr. Burke had, in fact, acknowledged this in his testimony. He referred to them as typical cases or even hum-drum cases. In terms of success as measured in the determination of the issues, the claimants were unsuccessful on their primary claim under section 33. They were also largely unsuccessful with respect to their personal claims for various disturbance damages. While some of the claimants had obtained marginally more than the advance payments, the amounts involved were small: one received only $145 more (Clements), one received $165 more (Penfold) and one received $2,924 more (Ferguson). Finally, with respect to the manner in which the case was presented the respondent quoted from the May 1, 2003 reasons on cost entitlement at para 19 and 20:

…, in our opinion, the valuation model used in the before and after approach was flawed, not only in its assumptions, but also in applying the most broad brush unit values to the single family residential properties. As a result we had no confidence that the before and after valuations reflected the market value of the subject properties as defined in the Act: what a willing buyer and seller would have agreed on as the sale price on the relevant date. It was unreasonable to pursue this model that ignored the reality of Government Street as a busy through street for many decades.

[20]  With respect to the personal losses we have already observed in the compensation decision at para. 172 that closer scrutiny of these claims before the hearing should have eliminated some of them. The evidence for a number of these claims was minimal and more importantly the link between some claims and the project was tenuous. Other cases of the board on economic loss indicate that the claims for economic loss advanced in this case had little chance of success. It was unreasonable to pursue a number of these claims through a hearing. (respondent's emphasis)

3.2  Analysis and Conclusion

[16]  This issue has already been addressed in Ingham at para 38 and 39. There is reference in that case to Ashby v. 2076 Holdings Ltd. and Dical Investments Ltd. v. Morrison both of which are authorities for the proposition that where one solicitor acts for more than one defendant the parties are restricted to one bill of costs. However, where different work was in fact done for one or more persons who were plaintiffs or defendants, separate allowances of costs may be allowed for that item since each person had a separate cause of action. See Evans v. Wilson (1978), 6 B.C.L.R. 294 (S.C.).

[17]  In this case, the real issue was how much work was done separately. The claimants conceded that some work was done in common and that only one bill of costs was to be shared between the claimants for those items. There was also some work that was done separately and the respondent acknowledged that separate bills for those items were appropriate. However, there was other work that was more difficult to characterize.

[18]  The mere fact that there were separate pleadings, separate reports or separate accounts does not necessarily mean that the work was entirely separate and the claimant is entitled to a separate bill of costs as if the case had been entirely on its own. One must review what was actually done and determine whether it was, in fact, done separately and further, whether it was reasonable that it was done separately. Claiming separately for something that it was reasonable to do jointly in order to maximize costs is not a procedure that is appropriate. As was previously stated in para 27 of the compensation decision in this matter:

We agree with the Chair, Robert Shorthouse, when he stated "… maximizing cost recovery under the Tariff [is]  not a principle by which the board, in controlling its own procedures … [is]  prepared to be governed". See Captain's Square Holdings Ltd v. British Columbia (Minister of Transportation and Highways) unreported oral decision, March 16, 2001.

In reviewing the legal bill of costs, the appraisal bill of costs and the bills of cost for this section 45 application, for each item I must determine what was reasonably done separately.

[19]  Where an item was done jointly or where I determine that it was in effect done jointly each set of claimants is entitled to their share of the units available for that item. There were six sets of claimants in the events leading up to and including the compensation hearing. At this final cost hearing there are only five sets of claimants; I have been told that the costs for the sixth claimant, Neta Warner, will be resolved between counsel on the basis of the reasons for decision in this application. For those items leading up to and including the compensation hearing that were done jointly, each of the five sets of claimants before me in this application is entitled to their share of the units which is one sixth of the total units. For those items to do with this application each of the five sets of claimants is entitled to their share of the units which is one fifth of the total units. Ms. Ferguson is entitled to 100% of the units she is allowed. The other four sets of claimants before me in this application are entitled to 100% of those units they are allowed that occurred on or before March 27, 2002 and 65% of those units they are allowed that occurred after March 27, 2002.

4.  LEGAL BILLS OF COST

[20]  The claimant, Edith Ferguson claimed the following bill of costs for legal work:

All of the other claimants claimed identical bills of costs but for a reduced entitlement of 65% for items 19, 20 and 23 for a total of 191.15 units. One other anomaly was that for items 16 and 17 preparation for and attendance at two pre-hearing conferences Ms. Ferguson has claimed 4 and 6 units while the other sets of claimants have claimed 2 and 3 units.

[21]  Item 1 is for correspondence and conferences etc that are not covered elsewhere in this tariff. Each set of claimants has claimed 10 units which is the midpoint of the possible range. The respondent does not dispute this claim. The evidence in Mr. Burke's affidavit supports that there were a number of communications and meetings with each of the sets of claimants. I allow 10 units for each set of claimants.

[22]  Each set of claimants claim one unit for item 2, reviewing and advising in relation to an agreement pursuant to section 3 of the Act, where no agreement is entered into. The respondent objects to this item and says that there is no evidence of a section 3 agreement as provided for in the Act being offered for consideration. In two of Mr. Burke's affidavits for the claimants he asserts that there was no reviewing or advising with respect to a section 3 agreement. In the other affidavits there is no mention of item 2. A proper construction of item 2(a) is that there must be some document, a proposed section 3 agreement or proposed terms for a section 3 agreement, that has been reviewed and upon which advice has been given for units to be allowed. Where there is no proposed section 3 agreement to be reviewed and discussed, there is no basis for allowing units for this item. The claim for this item is denied.

[23]  Item 3 is for reviewing and advising with respect to an advance payment. The number of units prescribed for this item is fixed for each advance payment. The respondent concedes that there were two advance payments but submits that the consideration by claimants' counsel did not address the impacts of the payments on the individual claims to such a degree as to warrant four units for each set of claimants. The respondent submits that half the fixed units claimed or two units for each set of claimants is appropriate. The respondent referred me to Chu v. School District No. 36 (Surrey) (2001), 72 L.C.R. 89 (B.C.E.C.B.) as authority for a reviewer to deny all or part of the fixed number of units for an item on the basis of necessity and reasonableness. In Chu the number of units for a cost hearing was reduced on the basis that the claimant had been at best only partially successful and therefore the reasonableness of proceeding with the application was in issue. In my opinion, this principle has no application to this item about advising on an advance payment. The Tariff provides both a more general and a more objective standard than reasonable costs. While there are certain time frames attached to some items such as a specified number of units per day, there is a basic entitlement to units for some items as long as the event occurred, whether the time involved was 15 minutes or 90 minutes or longer. The reviewer may allow less than the fixed units because the item was not necessary or reasonable but it is not appropriate to allow only a portion of fixed units purely on the basis of less time being expended than should have ordinarily been spent. See Budd v. British Columbia (Minister of Transportation and Highways) at para 52-56. I allow 4 units to each set of claimants.

[24]  Under item 4 each set of claimants claim a total of 6 units for instructing two experts. The primary expert was the appraiser, Mr. Grant. Mr. Grant prepared reports on each of the six subject properties and gave testimony at the compensation hearing. The other expert who prepared reports was the arborist, Mr. Hinter. The evidence was that the claimants retained Mr. Hinter directly. Mr. Hinter prepared reports for each set of claimants but Ms. Warner. Mr. Grant had several communications with Mr. Hinter early on and Mr. Hinter's reports were included in Mr. Grant's reports. Mr. Burke said that he did not provide any instructions to Mr. Hinter until Mr. Hinter attended the hearing. There was also reference to a third expert, the property assessor, Mr. McLeod, but Mr. McLeod did not prepare a report and that is a requirement for a claim under item 4. Thus the time dealing with Mr. McLeod will have to be considered under item 18, preparation for hearing.

[25]  I was provided with "most of the correspondence file for each claimant" before me in this application as well as the contents of the general correspondence file. I also had Mr. Burke's detailed time records for billing purposes. Finally, I had both the appraisal reports and the arborist reports.

[26]  As indicated below the appraisal reports on the six properties had large portions that were identical. Virtually all communications between Burke Law Corporation and the appraiser Mr. Grant occurred collectively. References to appraisal issues in the correspondence or memos were almost all ones that were shared in common. Almost all of the references to communications with Mr. Grant are in the time records for the general file. The individual claimant's time records show one reference to a discussion with Mr. Grant that was identical in all five time records. This suggests that the discussion was about joint issues and the collective activity was billed to each claimant's file. There were a few references to communications with Mr. Grant in some of the individual claimant's time records. Some of these were cover letters for documents with respect to a specific property that were exchanged between Mr. Burke and Mr. Grant. There was an enquiry of Mr. Grant about the set back for the Clements' property. There was an enquiry about the impact of injurious affection of the widened Government Street on a basement suite in the Potters' home when the suite had no windows at the front overlooking Government Street.

[27]  The general correspondence file indicates only two communications to Mr. Hinter and both of these were to do with his accounts. There is only one reference to one telephone conversation with Mr. Hinter in Mr. Burke's detailed time records for the general file. Presumably some time was spent with Mr. Hinter during the hearing prior to his giving testimony.

[28]  This item permits a range of 1 to 5 units for each expert. Mr. Grant was the primary expert and as indicated almost all of the communications between Burke Law Corporation and Mr. Grant were to do with common issues. I allow each set of claimants their share of 2.5 units and an additional 0.5 units separately. Mr. Hinter was a secondary expert and the evidence indicates that Mr. Burke spent very little time on any activity that could be characterized as instructing an expert. I allow each set of claimants their share of 1 unit. Mr. Hinter prepared no report for Ms. Warner and therefore the claimants in this application are entitled to 0.2 units each. Thus the total number of units for each set of claimants is 1.1 units. (Ms. Warner would be entitled to 0.9 units.)

[29]  Item 5 is for commencing and prosecuting a proceeding. This item has a range between 1 and 10 units and the claimants each claim 5 units. The respondent says that the claims were essentially identical with some differences in detail and as a result 2 units each were appropriate.

[30]  Many of the paragraphs in the Form A's were identical with a substitution of different numbers for the amount of land taken, and some other minor differences for specific properties. While the personal losses were originally pled in a similar manner, two weeks before the hearing separate particulars were provided for each property. These particulars were amended during the hearing. It would have been possible for the claimants to have shared in a common set of pleadings with some individual differences.

[31]  As indicated above, the panel in the compensation decision commented that closer scrutiny of the personal losses would have eliminated some of the late amendments that occurred during the hearing and indeed would have eliminated several of the claims for personal losses altogether. Under section 45(10) of the Act, one of the factors that I must consider in allowing costs is the manner in which the case was prepared and conducted.

[32]  As a joint endeavour I agree that the matter was one in which an average amount of time should ordinarily have been spent in commencing and prosecuting the claim. Each set of claimants is entitled to their share of 5 units or 0.8 units. However, there was some separate work done, and keeping in mind the factors discussed above I allow an additional 1 unit for each set of claimants. Thus each set of claimants is entitled to a total of 1.8 units for item 5.

[33]  Items 6 and 7 are for discovery of documents: item 6 for obtaining discovery of documents and item 7 for providing discovery of documents. Each set of claimants claims the mid point of the range or 5 units each for each item, although in submissions they conceded that item 6 was done collectively. The respondent's position is that each set of claimants should obtain 3 units for item 6 and 1 unit for item 7. The respondent relies on Topping v. British Columbia (Minister of Transportation and Highways), (2000) 73 L.C.R. 72 as authority for only allowing 1 unit for each set of claimants for item 7. In Topping the claimant listed about 160 documents most of which were the letters and fax cover sheets between counsel and the respondent and counsel and the board, listed separately, along with about 70 receipts and invoices. After commenting on the relatively small number of new documents and the summary nature of an invoice compared to documents such as correspondence or contracts, the board allowed 2 units for item 7.

[34]  In this case the respondent has listed 165 general documents and a varying number of documents for each set of claimants ranging between 34 and 53 documents. As in Topping a number of the individual documents are the formal expropriation documents, pleadings and correspondence between solicitors and thus they are documents that the solicitor has already seen. I allow each set of claimants 3 units, or 15 units in total for the sets of claimants in this application.

[35]  With respect to item 7, the claimants have listed only 22 general documents and between 14 and 38 documents for each set of claimants separately. Again the individual documents include the formal expropriation documents, notices of assessment and a few invoices for each property. I agree that this item is one upon which little time should ordinarily have been spent and allow 1 unit for each set of claimants or 5 units in total for the sets of claimants in this application.

[36]  With respect to item 9, process for answering interrogatories, the claimants have claimed the midpoint of the range or 5 units each. The respondent does not contest this claim. While the 11 questions on the interrogatories were the same for each set of claimants, the responses in each case were different. I allow each set of claimants 5 units.

[37]  Items 10 and 11 are to do with preparation for and attendance at examinations for discovery. Each set of claimants claimed 1.5 units and 3 units for the discovery of the respondent's representative, although in argument it was conceded that this item was done jointly. The respondent says and I agree that the units for this item must be shared. Only one discovery of the city's representative occurred and the claimants are collectively entitled to their share of 1.5 units and 3.0 units or 0.3 and 0.5 units respectively.

[38]  With respect to items 10(b) and 11(b), discoveries of the claimants, each set of claimants claimed 1 unit and 2.5 units each. The respondent did not object to this claim. I allow each set of claimants 1 unit and 2.5 units respectively.

[39]  Items 12 and 13 are to do with interlocutory applications. Two applications are claimed: one was the respondent's application to amend its Form B heard on March 12, 2002. The other application was characterized in Mr. Burke's affidavit as the respondent's application on March 14, 2003 to adjourn costs pending the appeal. This second application was on behalf of the five claimants other than Ms. Ferguson. Both applications were heard by teleconference and were less than 2.5 hours. Each set of claimants is entitled to their share of 1.5 units and 2.5 units for items 12 and 13 for the first application. The claimants other than Ms. Ferguson are entitled to 1.5 units and 2.5 units for items 12 and 13 for the second application to be shared between all the claimants but for Ms. Ferguson. Thus, each set of claimants is entitled to 0.3 units for item 12 and 0.4 units for item 13 for the first application. All but Ms. Ferguson are entitled to 0.3 units for item 12 and 0.5 units for item 13 for the second application.

[40]  In addition, although it was not on the Bill of Costs there was an additional matter with respect to Ms. Ferguson's claim only. On October 3, 2002 there was a short case management by teleconference to discuss a Notice of Motion that had been filed seeking to adduce additional evidence from Ms. Ferguson with respect to her claim. The respondent did not oppose the filing of new evidence but wished to have the opportunity to file further material and make written submissions on the weight that ought to be accorded to the new evidence. It was agreed that the claimant would file an affidavit with new evidence and the respondent would have the opportunity to file further material and make written submissions. Since the respondent agreed to the order sought I will treat this activity as a Notice of Motion that was not opposed. Ms. Ferguson is allowed 1.0 unit for item 12 and 2.0 units for item 13.

[41]  With respect to items 16 and 17, pre-hearing conferences, there were two such conferences on February 7 and March 19, 2002 which were conducted jointly and were less than 2.5 hours. Both the claimants and the respondent agreed that they were shared. I allow 2 and 3 units to be shared or 0.3 units and 0.5 units respectively for each set of claimants.

[42]  Items 18 and 19 are to do with preparation for and attendance at the hearing. Each set of claimants claim the maximum of 30 units for six days of preparation for item 18. Ms. Ferguson claims 120 units for item 19 while each of the other sets of claimants claim 84.5 units. The order of the board made May 1, 2003 provides that those claimants other than Ms. Ferguson are to have only 65% of their costs for those activities that occurred one week after the second advance payment of March 20, 2002 or as of March 27, 2002. In argument the claimants submitted that for item 19, each of them should be allowed units for the five days it would have taken for their claim to be heard separately, rather than units for the nine or ten days on their bills of cost. The respondent said that for item 18, preparation for the hearing, the units should be shared between the claimants. For item 19, the respondent conceded that some time was spent on the claimants' individual claims. However, most of this time was for personal losses on which the claimants generally made very small recovery. Section 45(10) of the Act requires the reviewer to consider the degree of success. The respondent says that each set of claimants is entitled to the equivalent of one day for their individual claim. (There was also the equivalent of one day for Ms. Warner's claim.) The remaining hearing days should be split between the sets of claimants.

[43]  The first issue is the number of hearing days. In certain of the bills of costs the hearing is stated to have occupied nine days and in others it says ten days. In Mr. Burke's affidavits the hearing is said to have occupied ten days. In fact, the board file indicates that the compensation hearing for the six claimants occurred over nine days, not ten. Evidence was heard on days between Tuesday April 2 and Friday April 12, 2002 as well as on the morning of May 2. Argument occupied the remainder of May 2 and was completed around mid day on May 3, 2002. No hearings occurred on April 8 or 9, 2002. Mr. Burke's affidavit accurately sets out the dates on which the hearing occurred but provides an incorrect number for the total days.

[44]  The next issue is the length of hearing days. Mr. Burke claimed that six of the ten hearing days (in fact, nine days) were over 5 hours. The board file indicates that of the nine hearing days two were half days that were nonetheless longer than 2.5 hours, two were full days that adjourned at 3:30 or 4:00 pm and were less than 5 hours, and five were days that did not adjourn until later (the latest of which was 5:15 pm). However, the lunch break on one of these five longer days was two hours. Thus, in total, five days were less than 5 hours and four days were more.

[45]  The maximum units permitted for item 18 are 30 units for six days of preparation. The detailed time bills indicate that while some preparation occurred before March 27, 2002, such as preparation of a book of exhibits and preparation of Mr. McLeod's evidence, much of the preparation occurred after that date. The time bills show that preparation continued after the hearing started as there were a number of extended breaks in the hearing between April 2 and May 3, 2002. I allow one day of preparation before March 27 and five days after. The evidence shows that this item was done largely collectively. It is also the case that the issues were not that complex and the claimants generally did not enjoy success in their claims. Under section 45(10) I must consider these factors. I allow each set of claimants their share of 15 units for three days of preparation jointly and 2.5 units for a half day separately. Thus, Ms. Ferguson is entitled to 5.0 units while each of the other sets of claimants is entitled to 3.2 units.

[46]  With respect to item 19, there is no basis under the Act and Tariff to allow units based on the time that counsel says an individual hearing might have taken. The same factors under section 45(10) discussed above apply to this item. I agree with the respondent that about one day of the hearing can be attributed to each set of claimants, including their share of the appraisal evidence and the evidence to do with the personal losses. This allocation includes time for Ms. Warner's claim. The other days are to be shared between the claimants. At the average of 12.8 units per each hearing day Ms. Ferguson is entitled to 19.1 units while each of the other sets of claimants is entitled to 12.4 units.

[47]  Item 20 is for written argument where ordered by the board. Each set of claimants claim 5 units (or 65% of the 5 units, 3.25 units), for the written argument requested on the issue of entitlement to costs. The respondent says that no units should be allowed for Ms. Ferguson as the written argument had no application to her. With respect to the other five sets of claimants the respondent submits that the results of this argument were mixed at best and under section 45(10) the most that should be allowed are 5 units in total or one unit each including Ms. Warner but excluding Ms. Ferguson. I agree that since Ms. Ferguson is entitled to her costs, she is not entitled to any units for this argument. The written argument is four pages in length and is made collectively on behalf of the other five claimants. There is no reference to any of the individual claimants. I agree with the claimants that the number of units that should be allocated for this argument is midway between the minimum and the maximum or 5 units. If the 5 units are to be shared between the 5 sets of claimants (excluding Ms. Ferguson but including Ms. Warner) then each is entitled to 65% of one unit or 0.7 units.

[48]  For item 21, the claimants say that each set of claimants had to be consulted as to the date of the hearing and that this justifies separate claims for this item. The respondent says that the hearing was set down once, by one letter to the Board, and only one unit should be allowed. I note that in any matter the expert witnesses also have to be consulted about the date of the hearing and there may be between one and six experts. The number of people to be consulted is not the basis for this item. I agree with the respondent on this item and allow one unit to be shared.

[49]  Item 23, travel by a solicitor of more than 40 km, was also done collectively. Six days of the travel was after March 27, 2002. Ms. Ferguson is allowed her share of 16 units or 2.7 units and the other claimants are each allowed 65% of their share of 12 units and 100% of their share of 4 units or a total of 2.0 units each.

[50]  Thus the total number of units allowed for legal costs is as follows:

[51]  There are also units under the legal bill of costs for the cost hearing that are dealt with below. Ms. Ferguson is entitled to 4.6 units for the cost hearing while each of the other sets of claimants is entitled to 3 units. Thus, Ms. Ferguson is entitled to 66.0 units in total for the legal bill of costs while each of the other sets of claimants is entitled to 54.0 units. At Scale 2 or $140 a unit the costs for legal work is as follows:

These legal costs excluding disbursements total $45,204.60 for the five claimants in this application. Ms. Warner's legal costs are to be determined separately.

5.  APPRAISER'S BILLS OF COST

[52]  The claimant, Edith Ferguson claimed the following appraisal bill of costs:

All of the other claimants claimed identical bills of costs but for a reduced entitlement of 65% for items 7 and 8 of 35.75 and 5.2 units respectively for a total of 145.95 units.

[53]  I was provided with an affidavit from Danny Grant, the claimants' appraiser, who also gave oral evidence at the hearing. Mr. Grant's time records or billing worksheets regarding the appraisal reports for each of the claimants were in evidence: These included work undertaken between November 29, 2001 and April 15, 2002 and the hours spent by different personnel at Interwest Property Services (1991) Ltd. on various activities, as well as the disbursements incurred during this period. The hourly rate of each individual who worked on the file was provided along with a resume indicating that person's qualifications and experience. For each claimant there were two separate billing worksheets one that recorded work done on November 29, 2001 only and one that recorded work between January 16 and April 15, 2002. Each of the two separate billing worksheets for each claimant had applicable taxes for the time spent and for certain disbursements as well as indication of payments made and current balances. Mr. Grant indicated that these were internal office records that were not provided to the claimants; they appeared to be detailed internal records generated when an account was rendered. For each claimant the two billing worksheets recorded a total of 46.05 hours and fees of $8,137.50 at a combined hourly rate of $176.71. Each of the five billing worksheets recorded identical hours for identical activities on identical dates.

[54]  Mr. Grant stated that he met with each claimant separately and inspected each of their properties. Each of the properties had its own characteristics. However, certain work on the appraisal report was done in common. The background information, market research, inspection of comparable properties, some of the analysis of the market data, and some of the preparation for the hearing were done in common. He prepared six separate appraisal reports.

[55]  Mr. Grant's affidavit also stated that he performed work not covered in the Tariff to assist counsel on the cross-examination of the respondent's appraiser. He stated that 3.5 hours were billed to each of the claimants for a total of 17.5 hours at his hourly rate of $200. This amounted to $700 per client or $3,500 in total. The respondent opposed this claim on the grounds that the work was still appraisal work that must be assessed under the Tariff. This case could be distinguished from the case where an account had been allowed outside the Tariff, Chivers v. British Columbia (Minister of Transportation and Highways) (2002), 79 L.C.R. 57. In Chivers, some expert advice by the appraiser Mr. Grant was characterized as agrology, an area in which he had some relevant expertise, whereas in this case the expert advice remained appraisal.

[56]  I agree with the respondent that this work to assist counsel on the cross-examination of an appraiser remains inside the Tariff. This work involved Mr. Grant, an appraiser, critically reviewing the authority's appraiser's views on the market value of the subject property. It is part of the work an appraiser does to enable the claimant to assert his or her claim for compensation or damages. In fact, since the respondent must provide a section 20 appraisal with the advance payment, a critical review of this appraisal is the first step for most appraisers who have been retained by a claimant. It is an inherent part of the claimant asserting they have a claim for compensation for market value that is in excess of the advance payment. The Tariff provides at section 3 that "real estate appraisal costs must be assessed under schedule 2". Such work might be placed under item 1 of the Tariff: correspondence, conferences and meetings with counsel relating to a claim for which provision is not made elsewhere in this tariff. I deny the claim for additional costs outside the Tariff.

[57]  Item 1 is for correspondence and conferences etc that are not covered elsewhere in the tariff. The claimants have claimed 10 units each or the midpoint of the range for this item. The respondent says that the time sheets do not appear to record anything under this item and suggests that 2 units each is an appropriate allowance.

[58]  First of all, Mr. Grant's time sheets are very general and provide little breakdown of his work on the listed dates. Although there are five separate time records, one for each set of claimants, I note that the time records for dates and hours of work are identical in all five accounts. The disbursements too are almost identical for each claimant with only a small difference in one or two items. This suggests that the work was in fact done collectively and the joint time was then split between the six claimants.

[59]  Second the appraisal reports on the six properties are very similar. Each report is approximately 80 pages followed by 66 pages of appendices (but for Ms. Warner's report which has a shorter appendix since Mr. Hinter did not do a report for her property). As indicated above the reports share a common approach. Many of the sections of the reports are identical. The 66 pages of appendices are identical but for Mr. Hinter's report which is different for each of the five properties on which he prepared reports. It appears that the only differences in the reports are the photographs, a description of the subject property, a Marshall & Swift cost estimate for the improvement on each subject property, and a very few paragraphs in the analysis. The analyses show some commonality and certain parts are identical given the common approach, although there are some differences on minor points and the final numbers are different. In para 68 and 69 of the compensation decision (79 L.C.R. 161) the panel commented on the sketchiness and "broad brush" approach taken by Mr. Grant and the lack of specific comment on any of the subject properties in relation to any of the comparables. This close similarity of the six reports indicates that much of what Mr. Grant had to do in preparing the reports was common for all claimants, although of course there was some separate work for each subject property. However, much of the individual work on the subject properties would be recorded under item 2, inspection and research of the subject property.

[60]  Another source of evidence of what Mr. Grant did is Mr. Burke's affidavit. The correspondence and time records in this affidavit indicate some communications with Mr. Grant, virtually all of which were done on a collective basis.

[61]  Finally as indicated above the work on reviewing Mr. Hyslop's appraisals in order to advise counsel is included under item 1. Mr. Hyslop's appraisals of the six subject properties are similar and most of the cross-examination by counsel was about common issues. Thus, this work in reviewing the appraisals was largely joint.

[62]  A maximum of 20 units is possible for this item and 10 units are for cases in which an average amount of time should ordinarily have been spent. Given the small proportion of time in item 1 spent on the issues for individual claimants I conclude that each claimant is entitled to 1.5 units separately and their share of 10 units that are collective. This results in each claimant receiving 3.2 units.

[63]  Item 2 is for inspecting and researching subject property. The claimants claim the midpoint of the range or 15 units each. The respondent says that most of the inspection of the properties was restricted to the exteriors of the properties and that accordingly 10 units for each property was appropriate.

[64]  Inspecting and researching the subject properties is an item in which separate work was done for each set of claimants, though some of the properties had similarities. Mr. Grant's time records indicate only 2.5 hours on the inspection of each subject property. However, as indicated above these time records are very general and it is difficult to specifically categorize the general activities listed under different items. In any event, where there is a range of units, under section 4(6) of the Tariff I am to allow units in relation to the time that should ordinarily have been spent on this item, not on the basis of the billed time. I agree that there was little evidence of inspection of the interiors of the subject properties. As stated above the panel in the compensation decision commented on the general broad brush approach and the lack of specific comparisons of the subject properties with any of the comparables. On the other hand there was considerable evidence on landscape features and Mr. Grant communicated with the arborist Mr. Hinter. Mr. Hinter's opinions on each of the five properties were incorporated into Mr. Grant's own analysis. The evidence supports that what was done on this item was work on which less than the average amount of time should ordinarily have been spent. I allow 10 units to each set of claimants for this item.

[65]  Item 3 is for market research, including all necessary attendances, while item 4 is for inspection of comparable properties. Each set of claimants claim the midpoint of the range or 10 units for each item. The claimants did concede that market research and work on the comparables was done jointly. The respondent says that there should be less than the maximum number of units in total for both these items; it submits that 3 units for each item for each set of claimants are appropriate.

[66]  Mr. Grant's time records indicate time spent on market research and also on some travel to do some of this research. This work appears to cover both item 3 and 4. First, I note that Mr. Grant provided considerable background information with respect to the project and the various claims. Second he used 25 different comparables altogether: 10 sales of lots to derive the market value of land for his summation approach and 15 sales of improved lots (8 before the project and 7 after) for his before and after direct comparison approach. A number of the lots sales were similar lots in the same subdivision. As already discussed, the compensation decision comments on the somewhat sketchy amount of information on the 15 sales of improved properties. I allow near the maximum for item 3 collectively or 3 units for each set of claimants. With respect to item 4, although there are a number of comparables, the amount of information and quality of inspection on each is somewhat sparse. I also allow 3 units for each set of claimants.

[67]  Item 5 is for analysis of data and preparation of a report or reports. Each set of claimants claim the mid point of the range or 30 units. The respondent says that the reports were essentially the same for each property. The approach was identical in each and there were only minor variations to reflect property details. As a result the respondent submits that only one set of units should be allowed. With respect to the factors specified in section 45(10), the board in its compensation decision pointed out that the report had fundamental flaws. Accordingly, the respondent says that only 30 units should be allowed in total.

[68]  As discussed above much of the appraisal reports on the six properties are identical. The analyses show some commonality and significant portions are identical since the approach is the same for each subject property although there are some differences on minor points and the final numbers are different. I am not persuaded that there was any reason other than cost consideration for doing six separate reports rather than one report with a separate section for each of the six subject properties. This approach would have worked even if one or more of the claims had settled or been heard at a separate time.

[69]  There is also the factor of the manner in which the case was presented under section 45(10). In para 19 of the cost entitlement decision the panel had this to say about the appraisal approach:

However, in our opinion, the valuation model used in the before and after approach was flawed, not only in its assumptions, but also in applying the most broad brush unit values to the single family residential properties.

[70]  In light of these factors I allow each set of claimants their share of 30 units or 5 units for the collective work on these reports. I also allow 2 units for each set of claimants for the individual work on the subject properties. Thus, each set of claimants is allowed 7 units.

[71]  Item 6 is for preparation for a hearing. Each set of claimants has claimed the maximum of 30 units. The respondent sets out that under this item only 5 units can be claimed for each day of necessary attendance of appraiser at the hearing and that Mr. Grant's time sheets indicate that he attended only three days. The respondent also says that the time sheets indicate that preparation for the hearing occurred after March 27, 2002 and therefore the costs for this item are subject to a 35% reduction for those claimants other than Ms. Ferguson.

[72]  I accept that Mr. Grant was at the hearing four days. I find that all the preparation occurred after March 27, 2002 and therefore the claimants other than Ms. Ferguson have their units reduced by 35%. I agree that this item is largely shared, although there are some property details that are separate. Again there are the factors under section 45(10) discussed above that I must consider. I allow each set of claimants their share of 5 units for one day of preparation done jointly plus 2.5 units for a half day preparation separately. Ms. Ferguson is allowed 3.3 units and each of the other sets of claimants is allowed 2.1 units.

[73]  Item 7 is for the necessary attendance at the hearing by the appraiser. The claimants each claim for four days, three of which were more than 5 hours. Ms. Ferguson claims 55 units and the others claim 65% of this or 35.75 units. The respondent says that this work too was done in common and on the same basis as item 6; the claimants are only entitled to shared units for three days of hearing (wrongly calculated to be 60 units) reduced by 65%.

[74]  The first issue to be decided is the length of the days of the hearing. While there were some days in which the hearing lasted more than 5 hours, Mr. Grant was an expert witness, whose role is different than counsel. Mr. Grant's preparation to give evidence, some of which no doubt occurred during the hearing, is allowed under item 6. His review of Mr. Hyslop's report and advice to counsel, some of which work may have occurred during the hearing, is allowed under item 1. Mr. Grant came and went during the hearing to listen to different evidence. He did not testify more than five hours on any one day. I allow units for Mr. Grant's attendance for four days based on a 5 hour day. This item of attendance at the hearing to give expert evidence was primarily done collectively as the evidence on the common approach was shared. In a similar manner to the reasoning under item 6 each set of claimants is entitled to their share of 20 units for two days joint work and 2.5 units for a half day separately. This work occurred after March 27, 2002 and the claimants other than Ms. Ferguson are entitled to 65% of their units. Ms. Ferguson is entitled to 5.8 units, while the other claimants are each entitled to 3.8 units.

[75]  The claimants have claimed 8 units for 4 days travel by an appraiser to attend a hearing. It is conceded that this work was done in common and the travel occurred after March 27. Ms. Ferguson is entitled to 100% of her share of 8 units or 1.3 units and each of the other sets of claimants is entitled to 65% of their share of 8 units or 0.9 units.

[76]  The total number of units allowed for appraisal costs is as follows:

[77]  These units are added to the units for the appraisal bill of costs for the cost hearing below for a total of 38.1 units for Ms. Ferguson and 34.0 units for the other claimants. At Scale 2 or $100 a unit the total costs for appraisal work is as follows:

These appraisal costs total $18,628.70 for the five claimants in this application excluding disbursements. Ms. Warner's appraisal costs are to be determined separately between counsel.

6.  BILL OF COSTS FOR COST HEARING

[78]  The claimants sought costs for this section 45 application. They brought separate Bills of Costs for this application, claimed jointly, as follows:

[79]  Although the main bills of cost had been provided to the respondent for some months in advance of the cost hearing, these bills of costs for the hearing were not provided until argument was being presented. There was no evidence or submissions made with respect to these bills other than a claim that they be allowed. The respondent said that it had not had an opportunity to review them.

[80]  The first items claimed are item 16 and 17 for two pre-hearing conferences. The dates of these were not provided. The board file shows that one case management with respect to costs was at the same time as a Notice of Motion allowed above (May 14, 2003). The application and case management together were well under 2.5 hours and the claimants have already received units for this application. They are not reasonably entitled to additional units for a case management that was related to the motion and heard at the same time. The board file also shows an additional case management on July 22, 2003. This work was after March 27, 2002 and is thus subject to a reduction of 35% for the claimants other than Ms. Ferguson. Ms. Ferguson is entitled to her share of 1 and 1.5 units or 0.5 units for both items, while the other sets of claimants are entitled to 65% of their share or 0.3 units each.

[81]  This was a section 45 cost hearing. Mr. Frame represented the claimants at this hearing. As indicated above there were affidavits from both Mr. Burke and from Mr. Grant. In addition, both Mr. Burke and Mr. Grant gave viva voce evidence and were available for cross-examination at the request of the respondent.

[82]  Schedule 1 to the Tariff contains item 15 for cost assessment and item 14 for preparation for a cost assessment with a fixed rate for each day. In this case the cost hearing occupied something less than 1.5 days. Although the original Bill of Costs claimed under items 14 and 15, these items were removed at the hearing and the separate Bill of Costs for the cost hearing set out above was brought instead. In this separate Bill the claimants claim for item 19, attendance at a hearing, rather than item 15, attendance before the board to assess costs. The claimants did not provide reasons why they claimed under item 19 for this hearing. If the Tariff and Schedule 1 are read as a whole I find that the separate and specific item for assessment of costs is the item that must be used. I allow Ms. Ferguson her share of 3 units for item 14 and 6 units for item 15 or 1.8 units for both while the other claimants have 65% of their share of 3 units and 6 units respectively or 1.2 units each.

[83]  Mr. Frame travelled two days for this cost hearing. Ms. Ferguson is entitled to 0.8 units for item 23 and the other claimants are entitled to 0.5 units each.

[84]  Mr. Burke was a witness at the cost hearing. In Reon v. British Columbia (2002), 78 L.C.R. 216 the Chair allowed witness fees under the Tariff for Mr. Burke's attendance at the cost hearing. I understand that this case is under appeal. Counsel for the cost hearing in Reon was allowed units under items 14 and 15 for the cost hearing, as well as for item 23, travel to the cost hearing. However, with respect to the lawyer who was witness, the Chair allowed units under items 19 and 20, preparation and attendance at a hearing but specifically refused to allow any units for travel under item 23, having already allowed units for travel for counsel under this item. Mr. Burke was a witness for less than 2.5 hours. On the authority of Reon I allow 2.5 units for item 18 and 5 units for item 19. No units are allowed for item 23 but Mr. Burke's travel expenses are allowed. Ms. Ferguson is entitled to her share of 7.5 units or 1.5 units and each of the other sets of claimants are entitled to 1 unit each.

[85]  Thus Ms. Ferguson is entitled to a total of 4.6 units and each of the other sets of claimants is entitled to 3 units for legal costs for this cost application. These units are added to the legal bills of costs above.

[86]  Mr. Grant was also a witness at the cost hearing. His testimony was also less than 2.5 hours. Ms. Ferguson is entitled to her share of 7.5 units or 1.5 units and each of the other sets of claimants is entitled to 1 unit. No units are allowed for item 8, for travel but Mr. Grant's travel expenses are allowed. These units are added to the appraisal bills of costs.

[87]  The disbursements are allowed but for a reduction in the unit rate for fax to $0.35. The disbursements total $2,128.55. GST on this sum is $149 for a total of $2,277.55. Ms. Ferguson is entitled to her one fifth share, or $455.51, while each of the other sets of claimants in this application is entitled to $296.08.

7.  SUMMARY

[88]  Thus the claimants have been allowed the following costs.