Order in Council 726

Approved and Ordered June 25, 1999

Executive Council Chambers, Victoria

On the recommendation of the undersigned, the administrator, by and with the advice and consent of the Executive Council, orders that the attached Tariff of Costs Regulation is made.

APPENDIX

(This part is for administrative purposes only and is not part of the Order.)

Authority under which Order is made:

TARIFF OF COSTS REGULATION

Contents

Definitions

1 In this regulation:

"Act" means the Expropriation Act;

"reviewer" means a person who makes a determination or conducts a review of costs under section 45 or 48 of the Act;

"tariff" means the tariff of costs set out in the Appendix.

Application

2 This regulation applies to costs payable under sections 45 and 48 of the Act if the costs claimed were incurred on or after the date this regulation comes into force.

Tariff of costs

3 (1) If costs are payable under the Act, they must be assessed as follows:

(a) legal costs must be assessed under Schedule 1;

(b) real estate appraisal costs must be assessed under Schedule 2.

(2) When making an assessment of costs under section 45 or 48 of the Act, the reviewer must allow those costs under the tariff that were proper or reasonably necessary to conduct the proceeding.

(3) If costs are payable under section 45 of the Act, the board may, when it makes an adjudication of compensation following a hearing, fix the scale, from Scale 1 to 3 in section 4 (1), under which the costs will be assessed.

(4) The board may order that legal costs be assessed on a different scale from real estate appraisal costs, and may order that one or more steps in the proceeding be assessed under a different scale from that fixed for other steps.

Scale of costs

4 (1) When fixing the scale of costs, the board must have regard to the following principles:

(a) Scale 1 is for matters of less than ordinary difficulty or importance;

(b) Scale 2 is for matters of ordinary difficulty or importance;

(c) Scale 3 is for matters of more than ordinary difficulty or importance.

(2) When fixing the appropriate scale under which costs will be assessed, the board may take into account any of the following:

(a) whether a difficult issue of law, fact or construction is involved;

(b) whether a difficult appraisal issue is involved;

(c) whether an issue is of importance to a class or body of persons, or is of general interest;

(d) whether the result of the proceeding effectively determines the rights and obligations as between the parties beyond the relief that was actually granted or denied.

(3) Subject to section 3 (3), if

(a) costs are payable under section 45 or 48 of the Act, or

(b) payment of assessed costs has been agreed to on a settlement but no scale has been fixed or agreed to,

the costs must be assessed under Scale 2 unless a party, on application, obtains an order of the board that the costs be assessed under another scale.

(4) For the purpose of determining legal costs under Schedule 1, the value allowed on an assessment is as follows:

(a) Scale 1 - $100 for each unit;

(b) Scale 2 - $140 for each unit;

(c) Scale 3 - $180 for each unit.

(5) For the purpose of determining real estate appraisal costs under Schedule 2, the value allowed on an assessment is as follows:

(a) Scale 1 - $80 for each unit;

(b) Scale 2 - $100 for each unit;

(c) Scale 3 - $120 for each unit.

(6) If an item in the tariff provides for maximum and minimum numbers of units, the reviewer has the discretion to allow a number within that range of units, and must have regard to the following principles when assessing costs:

(a) one unit is for matters upon which little time should ordinarily have been spent;

(b) the mid-point of the range is for matters upon which an average amount of time should ordinarily have been spent;

(c) the maximum number of units is for matters upon which a great deal of time should ordinarily have been spent.

(7) If an item in the tariff provides for

(a) an amount for each day but the time spent during the day is less than 2 ½ hours, only ½ of the amount is allowed for that day,

(b) an amount for each day but the time spent during the day is more than 5 hours, the amount allowed for that day must be increased by ½ of the amount, or

(c) an amount for preparation for an attendance but the time spent on the attendance is less than 2 ½ hours, only ½ of the amount for preparation is allowed.

Expenses and disbursements

5 (1) In addition to the costs allowed on a review under the tariff, the reviewer may allow a reasonable amount for expenses and disbursements that were necessarily and properly incurred in the conduct of the proceeding.

(2) Subject to subsection (4), if tax is payable by a party in respect of legal or real estate appraisal costs, the reviewer must allow an additional amount calculated on the monetary value of the units assessed equal to the percentage rate of tax payable.

(3) Subject to subsection (4), if tax is payable by a party in respect of expenses or disbursements, the reviewer must allow an additional amount calculated on the monetary value of the expenses or disbursements assessed equal to the percentage rate of tax payable.

(4) If a person claims an additional amount under subsection (2) or (3) for goods and services tax payable on legal or real estate appraisal costs or on expenses or disbursements, that person must provide proof that

(a) the person is not a registrant under the Excise Tax Act (Canada), and

(b) the person is not entitled to and cannot claim reimbursement of any goods and services tax paid in respect of the costs, expenses or disbursements to which the additional amount claimed relates.

(5) In the absence of the proof required by subsection (4), no additional amounts for goods and services tax payable on costs, expenses or disbursements is allowed under subsection (2) or (3).

(6) An allowance must not be made for interest on legal or real estate appraisal costs or expense or disbursement claims.

Appendix

[Provisions of the Expropriation Act, R.S.B.C. 1996, c. 125, relevant to the enactment of this regulation: section 54]