98_2005 — Expropriation Proceeding Costs Regulation

s. 1 — Definitions

In this regulation:

s. 1 — Act

Act means the Expropriation Act;

s. 1 — board

board means the Expropriation Compensation Board;

s. 1 — board proceeding

board proceeding means a proceeding that was brought by filing an application with the board under section 2 of the Expropriation Compensation Board Practice and Procedure Regulation, B.C. Reg. 452/87, before March 18, 2005;

s. 1 — compensation decision

compensation decision means a determination under section 26 (1) of the Act, and includes a determination of the entitlement to, and the scale of, the costs that are or may be payable in relation to the proceeding in which the determination is made;

s. 1 — compensation hearing

compensation hearing means a hearing for the purpose of arriving at a compensation decision, but does not include

s. 1(a)

a pre-hearing conference,

s. 1(b)

an interlocutory hearing, or

s. 1(c)

a hearing under section 45 or 48 of the Act;

s. 1 — costs

costs means real estate appraisal costs or legal costs;

s. 1 — court

court means the Supreme Court;

s. 1 — in-progress board proceeding

in-progress board proceeding means a board proceeding if one of the following applies:

s. 1(a)

the board held a compensation hearing in the board proceeding after August 1, 2004 and before March 18, 2005 and the board has not yet rendered its compensation decision in that proceeding;

s. 1(b)

there has been an appeal to the Court of Appeal in relation to the board proceeding and the appeal has been heard, in whole or in part, before March 18, 2005;

s. 1(c)

before March 18, 2005, a hearing in the board proceeding was scheduled to commence after March 17, 2005 and before January 1, 2006;

s. 1 — reviewer

reviewer means, in relation to a determination of the amount of costs under section 45 of the Act or a review of costs under section 48 of the Act, the registrar of the court who is making the determination or conducting the review;

s. 1 — tariff

tariff means the tariff of costs set out in the Appendix;

s. 1 — unset board proceeding

unset board proceeding means a board proceeding that is not an in-progress board proceeding.

s. 2 — Application

This regulation applies to costs payable under section 45 or 48 of the Act but only,

s. 2(a)

in the case of legal costs, if those costs

s. 2(a)(i)

were incurred on or after June 28, 1999, and

s. 2(a)(ii)

are payable in relation to an unset board proceeding, and

s. 2(b)

in the case of real estate appraisal costs, if those costs

s. 2(b)(i)

were incurred on or after June 28, 1999, and

s. 2(b)(ii)

are payable in relation to an unset board proceeding or in relation to a compensation action, within the meaning of the Compensation Action Procedure Rule, brought under subrule (7) or (10) of that rule.

s. 3 — Tariff of costs

s. 3(1)

If legal costs and real estate appraisal costs are payable under the Act, they must be assessed as follows:

s. 3(1)(a)

legal costs must be assessed under Schedule 1;

s. 3(1)(b)

real estate appraisal costs must be assessed under Schedule 2.

s. 3(2)

When making an assessment of legal costs under section 45 or 48 of the Act, the reviewer must allow those costs under the tariff in Schedule 1 that were proper or reasonably necessary to conduct the board proceeding.

s. 3(3)

If costs are payable under section 45 of the Act, the court may fix the scale, from Scale 1 to 3 in section 4 (1), under which the costs will be assessed.

s. 3(4)

The court 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 board proceeding be assessed under a different scale from that fixed for other steps.

s. 4 — Scale of costs

s. 4(1)

When fixing the scale of costs, the court must have regard to the following principles:

s. 4(1)(a)

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

s. 4(1)(b)

Scale 2 is for matters of ordinary difficulty or importance;

s. 4(1)(c)

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

s. 4(2)

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

s. 4(2)(a)

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

s. 4(2)(b)

whether a difficult appraisal issue is involved;

s. 4(2)(c)

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

s. 4(2)(d)

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

s. 4(3)

Subject to section 3 (3), if the costs must be assessed under Scale 2 unless a party, on application, obtains an order of the court that the costs be assessed under another scale.

s. 4(3)(a)

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

s. 4(3)(b)

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

s. 4(4)

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

s. 4(4)(a)

Scale 1 - $100 for each unit;

s. 4(4)(b)

Scale 2 - $140 for each unit;

s. 4(4)(c)

Scale 3 - $180 for each unit.

s. 4(5)

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

s. 4(5)(a)

Scale 1 - $80 for each unit;

s. 4(5)(b)

Scale 2 - $100 for each unit;

s. 4(5)(c)

Scale 3 - $120 for each unit.

s. 4(6)

If an item in a 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:

s. 4(6)(a)

one unit is for matters on which little time should ordinarily have been spent;

s. 4(6)(b)

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

s. 4(6)(c)

the maximum number of units is for matters on which a great deal of time should ordinarily have been spent.

s. 4(7)

If an item in a tariff provides for

s. 4(7)(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,

s. 4(7)(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

s. 4(7)(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.

s. 5 — Expenses and disbursements

s. 5(1)

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

s. 5(2)

Subject to subsection (4), if tax is payable by a party in respect of legal costs 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.

s. 5(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 to compensate for that tax, which additional amount must be determined by multiplying the percentage rate of the tax by the monetary value of the expenses or disbursements as assessed.

s. 5(4)

If a person claims an additional amount under subsection (2) or (3) for tax imposed under Part IX of the Excise Tax Act (Canada) payable on legal costs or real estate appraisal costs or on expenses or disbursements, that person must provide proof that

s. 5(4)(a)

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

s. 5(4)(b)

the person is not entitled to and cannot claim reimbursement of any tax imposed under Part IX of the Excise Tax Act (Canada) paid in respect of the costs, expenses or disbursements to which the additional amount claimed relates.

s. 5(5)

In the absence of the proof required by subsection (4), no additional amounts for tax imposed under Part IX of the Excise Tax Act (Canada) payable on costs, expenses or disbursements is allowed under subsection (2) or (3).

s. 5(6)

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

Schedule

Appendix Tariff of Costs

Schedule

Schedule 1 Legal Costs

Schedule

Schedule 2 Real Estate Appraisal Costs