REASONS FOR DECISION

1. INTRODUCTION

[1]  The issue of costs in this matter was adjourned pending written reasons on compensation. Those reasons were released on February 15, 2000. See 69 L.C.R. 1. Sequoia Springs West Development Corporation ("Sequoia Springs") was awarded compensation in the amount of $200,000 for business losses and $1,480,000 for the market value of the land that was acquired and the reduction in market value of the remaining land. This compensation was awarded pursuant to section 40 of the Expropriation Act, R.S.B.C. 1996, c.125 ("the Act").

[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]  The total award for compensation was $1,680,000, which is 118% of the advance payment of $1,425,000. The total award for compensation, excluding the $200,000 stated to be for business loss, was 104% of the advance payment. The first issue to be determined is whether the compensation in this case falls within section 45(4) so that Sequoia Springs is entitled to its costs. In the alternative, if the compensation in this case is less than 115%, as set out under section 45(5), then the board has discretion with respect to awarding costs. If the board has discretion, the respondent, the Minister of Transportation and Highways ("MoTH"), urges us to consider a "Calderbank" settlement letter sent to Sequoia Springs shortly before the compensation hearing.

2. DOES THE PANEL HAVE DISCRETION AS TO COSTS

[4]  MoTH says that the compensation award clearly identifies $200,000 of the award as business losses. Therefore, this sum should be excluded in comparing the compensation award to the advance payment. Section 45(5) applies and the board has discretion with respect to awarding Sequoia Springs its costs.

[5]  Sequoia Springs submits that the compensation awarded by the board falls within section 45(4) of the Act and the board has no discretion with respect to awarding costs. Although $200,000 of the compensation is stated to be for business losses, Sequoia Springs says that this compensation is in fact for disturbance damages and therefore should not be excluded under section 45(4). Sequoia Springs points to its pleadings and particulars that characterize these losses as disturbance damages. Except in the final order the Reasons for Decision for the compensation refer to these losses in the alternative: as disturbance damages or as business losses.

[6]  In the alternative, Sequoia Springs says that we should interpret business losses in section 45(4) in accordance with the provisions in sections 34(2), 34(3), and 40(2), all of which discuss the timing for the determination of those expenses or losses that were incurred at some point after the taking. Sequoia Springs suggests that, under section 45(4), it is only those types of business losses that are similarly incurred at some point after the taking that ought to be excluded from consideration since they cannot be anticipated in an advance payment. In answer to that submission, MoTH points out that under section 20(12) an authority may increase the advance payment with a further payment at any time up until 10 days before the date scheduled for the commencement of the compensation hearing. Instead, MoTH suggests that the reason why business losses are excluded under section 45(4) is that these types of losses are within the control of the claimant. This means that they are more difficult for the respondent authority to accurately assess, even with the help of an independent expert, than the market value of the property.

[7]  In this case the award for $200,000 which has been characterized as business losses includes $10,000 for costs thrown away as a result of the taking for approximately two-months’ wages paid to an employee prior to the date of the acquisition. Another $65,000 was for that portion of an expense incurred two years after the acquisition that was determined to be directly attributable to the highway. Finally $125,000 was awarded for damages for an eight-month delay in the development of the property as a result of the highway, which delay did not commence until some two and a half years after the taking.

[8]  Business losses are not defined in the Act. However, one of the general principles of construction is that the Act should be read as a whole. There are a number of sections of the Act that are relevant to the consideration of business losses:

20  (1)	Within 30 days after …
	(c)	an agreement is made under section 3 (1),
	the expropriating authority must
	(d)	pay to the owner the amount the expropriating authority estimates is or will be payable to that owner as compensation, other than for business loss referred to in section 34 (3), and
	(e)	serve on the owner a copy of all appraisal and other reports on which the payment is based. ….
(12)	The expropriating authority may, at any time before 10 days before the beginning of a hearing to determine compensation, increase the amount of its advance payment made under subsection (1).

34  (1)	An owner whose land is expropriated is entitled to disturbance damages consisting of the following:
	(a)	reasonable costs, expenses and financial losses that are directly attributable to the disturbance caused to the owner by the expropriation;
	(b)	reasonable costs of relocating on other land, including reasonable moving, legal and survey costs that are necessarily incurred in acquiring a similar interest or estate in the other land.
(2)	If a cost, expense or loss is claimed as a disturbance damage and that cost, expense or loss has not yet been incurred, either the claimant or the expropriating authority may, with the consent of the board, elect to have the cost, expense or loss determined at the time, not more than 6 months after the date of expropriation, that the cost, expense or loss is incurred.
(3)	If an owner whose land is expropriated carried on a business on that land at the date of expropriation and, after the date of expropriation, relocates the business to and operates it from other land, reasonable business losses directly attributable to the expropriation must not, unless that person and the expropriating authority otherwise agree, be determined until the earlier of
	(a)	6 months after the owner has operated the business from the other land, and
	(b)	one year after the date of the expropriation.
(4)	If the board determines that it is not feasible for an owner to relocate his or her business, there may be included in the compensation that is otherwise payable, an additional amount not exceeding the value of the goodwill of the business.

40  (1)	Subject to section 44, if part of the land of an owner is expropriated, he or she is entitled to compensation for
	(a)	the market value of the owner's estate or interest in the expropriated land, and
	(b)	the following if and to the extent they are directly attributable to the taking or result from the construction or use of the works for which the land is acquired:
		(i) the reduction in the market value of the remaining land;
		(ii) reasonable personal and business losses.
(2)	If a person claims business losses under subsection (1), the losses must not, unless the person and the expropriating authority otherwise agree, be determined until at least 6 months after the loss was sustained.

[9]  A business might claim expenses or losses under section 34(1). This section provides that an owner whose land is expropriated is entitled to "reasonable costs, expenses and financial losses that are directly attributable to the disturbance caused to the owner by the expropriation". This section classifies all the reasonable costs, expenses and financial losses as disturbance damages and does not use the term business loss. However, if the financial losses are those of a business, then they might also be described as business losses.

[10]  Sections 34(2), (3) and (4) do not create additional categories of disturbance damages beyond the general definition in section 34(1). These sections set out various subcategories of damage with rules for when and how certain categories of damages should be determined. Section 34(3) applies only where a business is relocated; it sets out a timing schedule for when the business losses should be determined in that situation. It is the only subsection in section 34 that expressly uses the phrase business losses. Section 34(4) refers to the situation when it is not feasible for the business to be relocated. In that case, an additional amount may be payable not exceeding the value of the goodwill of the business.

[11]  Where there has been only a partial taking, an owner might claim reasonable expenses or losses under section 40(1). Section 40(1) specifically uses the term "business losses" and in fact the use of the phrase "reasonable personal and business losses" means that any expense or loss claimed by an owner in the operation of a business under this section must be labelled a business loss. However, in our view, the phrase "reasonable personal and business losses" includes some of the same costs, expenses, and financial losses that might be described in section 34(1). What section 40 does do, when compared to section 34, is expand the category of damages that can be claimed. In a partial taking, the owner is not limited to those damages that are directly attributable to the taking. Such an owner is also entitled to damages that result from the construction or use of the works for which the land is acquired. Further, an owner in a partial taking has a choice between claiming damages under either section 34 or section 40. See Patterson v. British Columbia (Ministry of Transportation and Highways) (1994), 53 L.C.R. 88 (B.C.E.C.B.); affd 62 L.C.R. 89 (B.C.C.A.) at p. 101.

[12]  We do not agree with Sequoia Spring’s submission that we should reclassify the expenses awarded in this case as disturbance damages instead of business losses. There is no magic in the labelling of an expense or loss as a business loss. The reference to business losses in the statute does not add another head of recovery outside the meaning of disturbance damages. An expense or financial loss that is claimed as a disturbance damage may also be a business loss if it is claimed by an owner in the operation of a business.

[13]  This brings us to a consideration of what types of business loss are excluded from the compensation awarded under section 45(4). We have been given two approaches to this question, but, in our view, neither of them is supported by the statutory framework when it is read as a whole. Sequoia Springs would have us restrict the phrase to certain kinds of expenses that are incurred after the expropriation and cannot be anticipated in the initial advance payment. (However, we note that $190,000 of the total of $200,000 business losses in this case occurred approximately two years after the taking and the initial advance payment). MoTH, on the other hand, suggests that everything that is labelled a business loss should be deducted from the compensation awarded.

[14]  Although it was not advanced by either counsel, in our opinion section 20(1) provides us with the answer. This section excludes only one kind of business loss from the advance payment; namely, business losses referred to in section 34(3). Section 34(3) is concerned only with business losses arising out of a business that has had to be relocated because of the taking. Section 20(1) provides that the authority never has to make an advance payment for those business losses falling under section 34(3). However, section 20(1) does not exclude other kinds of business loss such as the losses of a business where there has been no relocation because the business closed down or because it was a partial taking. We note that losses under these sections that occur at some date after the taking can be ascertained and be the subject of further advance payments under section 20(12) up until 10 days before the compensation hearing is scheduled to commence.

[15]  Section 45(4) compares the compensation awarded, excluding business losses, to the advance payment. Since section 20(1) specifies what type of business losses should be excluded from the advance payment, then reading sections 20 and 45 together, it is consistent that it is the same type of business loss that is excluded in section 45(4). It is only by qualifying the term "business losses" in section 45(4) with the words "under section 34(3)" that we can reconcile section 20 and section 45(4). In our opinion, if the legislature wished to exclude all types of business loss, when it is providing for advance payments and costs to which an owner is or may be entitled, then it would have clearly defined all these exclusions.

[16]  E.A. Dreidger in Construction of Statutes, 2^nd ed. (Toronto: Butterworths, 1983) says at p. 66:

A statute should, if possible, be construed so that there may be no repugnanacy or inconsistency between the different provisions.

Dreidger goes on to describe several different means by which courts have construed statutory provisions so that there is no inconsistency. The first method he discusses is where words are added by a court to qualify one of the statutory provisions. He gives as an example, Ottawa v. Hunter (1900), 31 S.C.R. 7, a case in which the Supreme Court of Canada had to reconcile two apparently conflicting paragraphs of an Act. The court added the qualifying words, "by the appeal", to one of the sections in order to bring the two provisions into harmony.

[17]  In this case, the $200,000 is for expenses and losses that have not arisen as a result of the business relocating on other land. The $200,000 is for disturbance damages under section 34(1) or business losses under section 40. It is not for the type of business losses to which section 34(3) applies. In our opinion, when we consider the entire compensatory scheme under the Act, the $200,000 is not excluded in applying the comparison set out in section 45(4). The total compensation is $1,680,000, which is 118% of the advance payment. Because the compensation awarded meets the minimum percentage set out in section 45(4), we have no discretion and Sequoia Springs is entitled to its costs. In the circumstances, it is not necessary for us to decide on how much consideration, if any, should be given to the Calderbank-type settlement letter.

3. CONCLUSION

[18]  We have determined that the $200,000 compensation awarded to Sequoia Springs should not be excluded in the application of section 45(4). As a result, we have no discretion as to costs and Sequoia Springs 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.