January 26, 2001, ECB Control No.: 93/95/198 (71 LCR 315)

Between:	Sequoia Springs West Development Corporation Claimant
And:	Her Majesty the Queen in Right of the Province of British Columbia as Represented by the Minister of Transportation and Highways Respondent
Before:	Sharon I. Walls, Vice Chair Lesley Eames, AACI, P.App. ,Board Member Julian K. Greenwood, Board Member
Appearances:	C. Edward Hanman, Counsel For The Claimant Fran Crowhurst, Counsel for the Respondent Catherine J. Parker, Counsel for the Board

REASONS FOR DECISION

1.   INTRODUCTION

[1] A decision on costs in this matter was released September 1, 2000 following on a general decision on compensation released on February 15, 2000. In the September 1, 2000 decision we determined that the total compensation awarded to the claimant Sequoia Springs West Development Corporation ("Sequoia Springs") was greater than 115% of the advance payments made by the expropriating authority under section 20(1) and (12) of the Expropriation Act, R.S.B.C. 1996, c.125 ("the Act"). As a result, Sequoia Springs was entitled to its costs.

[2] Relevant portions of section 45 of the Act are:

45	(3)	Subject to subsections (4) to (6), a person whose interest or estate in land is expropriated is entitled to be paid costs necessarily incurred by the person for the purpose of asserting his or her claim for compensation or damages.
	(4)	If the compensation awarded to an owner, other than for business losses, is greater than 115% of the amount paid by the expropriating authority under section 20 (1) and (12) or otherwise, the authority must pay the owner his or her costs.
	(5)	If the compensation awarded to an owner is 115% or less of the amount paid by the expropriating authority under section 20 (1) and (12) or otherwise, the board may award the owner all or part of his or her costs.

[3] Subsequent to the September 1, 2000 decision the respondent, the Minister of Transportation and Highways ("MoTH"), discovered that it had inadvertently omitted inclusion of a third advance payment in the sum of $54,500 plus interest made on November 27, 1996. This meant that the total advance payment was $1,479,500 rather than $1,425,000. With this correction, the total compensation awarded of $1,680,000 drops to 113.6% of the advance payment from 118%.

[4] Sequoia Springs acknowledged that it had received the payment and that it was prepared to account for this payment in its dealings with MoTH. However, it took the position that the September 1, 2000 decision was the board's final decision on the issue as to whether we had discretion with respect to costs and we were therefore functus officio on this matter. MoTH brought a Notice of Motion requesting that it be permitted to introduce the evidence of this further advance payment. This application was heard January 10, 2001.

2.   FUNCTUS OFFICIO

[5] Both parties referred us to Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848. In this decision the Practice Review Board of the Alberta Association of Architects reviewed the practice of a firm of architects and issued a report that made a number of findings of unprofessional conduct. This was outside the statutory mandate of the Practice Review Board and the Court of Queen's Bench quashed the Board's findings. The Board indicated that it intended to continue the original hearing and consider whether a further report should be prepared. The issue arose as to whether it was functus officio. Sopinka J. speaking for the majority held at p. 862 that the principle applies to administrative tribunals but that "its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law". In Chandler, the Board's original report was a nullity and it was permitted to reconsider the matter and render a valid decision.

[6] A number of other cases were discussed but the most relevant was Re Grier and Metro International Trucks Ltd. (1996), 133 D.L.R. (4th) 236 (Ont. Div. Ct.). In this case an employment standard officer made an order with respect to vacation pay for employees of a previous employer. There was an appeal hearing before a referee in which an agreed statement of facts contained a mistake with respect to the time period within which the new employee had replaced the previous employer, making it a year and two days rather than the actual time frame of two days. The referee reversed the employment standards officer's award of vacation pay and her misapprehension of the time frame appeared to influence her decision. When the mistake was pointed out the referee said that she was functus officio and could not reconsider her decision. MacPherson J. speaking for the court relied on Chandler. He expressly adopted the comments of Sopinka J. as to the flexible approach to functus officio that should be applied by administrative tribunals. At p. 243 he concludes:

In the present case, the parties made a mistake. The mistake influenced the decision of the referee. I can see no compelling reason for concluding that the mistake should not be corrected and the matter placed back before the referee for a new decision which would be untainted by reliance on the incorrect fact.

[7] In our case there is an appeal, with leave, from awards by the Expropriation Compensation Board to the Court of Appeal. Indeed, there has been both an appeal and a cross appeal of our original decision in this matter made February 15, 2000. However, these appeals did not include an appeal of the decision on costs, presumably because the mistake in the advance payment requires additional evidence to correct it. We see the facts in this case as being similar to those in Grier. On the basis of this case we have discretion to correct this one small mistake in the facts that was common to both parties and we exercise our discretion to make that correction.

3.   DISCRETION AS TO COSTS

[8] If the mistake in the advance payment is corrected then the total compensation awarded is only 113.6 % of the advance payment. Therefore under section 45(5) we have discretion with respect to costs.

[9] MoTH's main submission, if we have discretion with respect to costs, was that it had sent a "Calderbank" settlement letter to Sequoia Springs shortly before the compensation hearing. This letter was dated Wednesday November 11, 1998 and offered to settle the claim for $2,300,000. It reserved the right to bring the letter to the attention of the board on the issue of costs. The settlement offer was not accepted and the compensation hearing commenced on Monday November 16, 1998. As indicated above, final compensation awarded was $1,680,000.

[10] The issue of Calderbank settlement letters in expropriation cases was fully addressed by this board in Baines v. British Columbia (Minister of Transportation and Highways) (No 2) (1997), 62 L.C.R. 210. The board concluded at p. 220 in that case:

a Calderbank letter may be one factor in assessing the reasonableness of the owner in pursuing his claim for compensation, keeping in mind the different cost principles applicable in expropriation cases.

The board went on to consider the range of market value put forward by the two appraisers. Since the settlement offer was less than the market value (plus agreed disturbance damages) put forward by the claimant's appraiser the board stated it was "unable to say that the claimant's rejection of the offer ... in the Calderbank letter was unreasonable".

[11] In the present case we note that the market valuation set out in the claimant's appraiser's report was $2,600,000. There were also two substantial claims for disturbance damages. We did not accept the market valuation nor either of the claims for disturbance damages as presented. In fact, in the original February 15, 2000 decision, we were critical of the claimant's evidence and assumptions on a number of points. However, after considering all the circumstances we conclude that there was some reasonable basis for the claimant to expect to obtain more than the $2,300,000 offer to settle in the Calderbank letter. We also note that the settlement letter was received only two working days before the compensation hearing was scheduled to commence. Similar to the board's finding in Baines we are "unable to say that the claimant's rejection of the offer ... in the Calderbank letter was unreasonable".

[12] Further, we note that Sequoia Springs achieved compensation close to the minimum percentage for obtaining full costs as a matter of right. Most importantly it is our opinion that there were justiciable issues in this case which reasonably warranted being brought to the board for determination. See Daflos v. School District No. 42 (Maple Ridge-Pitt Meadows) (1999), 68 L.C.R. 167 (B.C.E.C.B.) at 222. We conclude that the claimant is entitled to its actual reasonable legal, appraisal, and other costs until June 28, 1999 and to its costs as prescribed in the Tariff of Costs Regulation, B.C. Reg 189/99 after that date.