ORAL DECISION OF THE CHAIR, Robert W. Shorthouse:

April 6, 2000.  ECB Control No. 34/91 (70 L.C.R. 14)
Victoria, B.C.

CHAIR:

By notice of motion filed on March 13, 2000, the claimant, Reon Management Services Inc., has applied to the Expropriation Compensation Board for a determination as to whether the board has jurisdiction to adjudicate the claimant's application to determine compensation in light of the judgment of the British Columbia Court of Appeal in Ocean Port Hotel Ltd. v. British Columbia (Liquor Control, General Manager) (1999), 174 D.L.R. (4th) 498. That judgment set aside a decision of the Liquor Appeal Board on the ground that the Board violated the requirement for institutional independence because its members lacked security of tenure.

I heard this application alone in Victoria, B.C., on March 31, 2000, in my capacity as chair of the board and in exercising the powers and jurisdiction of the board under section 26(5) of the Expropriation Act, R.S.B.C. 1996, c. 125. The hearing of the application took approximately three hours during which numerous authorities were cited and far-ranging submissions made. I reserved my decision until today.

The chronology of this compensation claim is that the claimant filed its prescribed Form A application with the board on July 11, 1991. The respondent, styled as Her Majesty the Queen in right of the Province of British Columbia, as represented by the Minister of Transportation and Highways, filed a reply to the claimant's application in the prescribed Form B on August 8, 1991. There was a contested interlocutory application before the board in 1992 by which the claimant sought, and obtained, an order to have its claims for compensation heard at the same time as those of another claimant, Shirley Eleanor Devick. The board's reasons in that respect are reported at 48 L.C.R. 70. There was evidently a second application brought and determined by consent. In fact, the compensation claim of Ms. Devick was heard and determined separately by the board some years ago. On at least two occasions over the past couple of years, the claimant's application has been set down for a separate compensation hearing before the board but in each case the hearing has been adjourned in advance by consent. On April 4, 2000, after the hearing of this application, the respondent sought leave of the board to file an amended reply, which was granted with certain conditions. At the present time, the compensation hearing is scheduled to be held in Kamloops, B.C., beginning on April 10, 2000, and is set for nine consecutive hearing days.

As I understand it, the history and present status of the Ocean Port case is as follows:

A senior inspector of the British Columbia Liquor Control and Licensing Branch imposed a two-day suspension of the licence holder, Ocean Port Hotel Ltd., for various infractions of the Liquor Control and Licensing Act, R.S.B.C. 1979, c. 237, in a decision dated January 16, 1997.

The senior inspector's decision was upheld, on appeal de novo to the Liquor Appeal Board, in a decision dated December 10, 1997.

The Liquor Appeal Board is established pursuant to provisions of the Liquor Control and Licensing Act. Section 30.1 of that Act provides in part that the Board is to consist of a chair and other members the Lieutenant-Governor in Council may appoint. It goes on to provide that the chair and the members of the appeal board shall serve at the pleasure of the Lieutenant Governor in Council. The evidence before the Court of Appeal was that the chair, vice chair, and eight other members of the board were all appointed for fixed one year terms by Order in Council and that their remuneration was determined under a Treasury Board directive.

Leave to appeal from the Liquor Appeal Board's decision was granted by Mr. Justice Esson on February 18, 1998, on a number of alleged grounds, including the following: "the fact that the Liquor Appeal Board serves at the pleasure of the Lieutenant-Governor denies them security of tenure, a component of the independence of that tribunal, and therefore their decision lacks impartiality and also breached natural justice and duty of fairness".

The appeal was heard on April 13, 1999, on the central issue of whether the Liquor Appeal Board was independent of the executive branch of government. The appellant's concern about the Board was limited to its alleged lack of security of tenure, one of the three components of the test for institutional independence confirmed by the Supreme Court of Canada in Canadian Pacific Ltd. v. Matsqui Indian Band (1995), 122 D.L.R. (4th) 129. The other two components, financial security and administrative control, were not in issue. The court of Appeal issued its reasons on May 12, 1999, allowing the appeal. At paragraph 37 of the Court's judgment, Madam Justice Huddart, writing for the Court, said as follows:

I have reached the conclusion the Supreme Court of Canada has decided that appointments at pleasure to administrative agencies such as the Quebec Regie d'alcool and the [British Columbia] Liquor Appeal Board exercising the power to impose sanctions for violations of statutes comparable to that possessed by courts of law are not sufficient to satisfy the requirement of security of tenure and that for such agencies security of tenure is an essential requirement of independence. I cannot distinguish a fixed term appointment on a part-time basis from a full-time appointment at pleasure in its effect on the office holder as it would be regarded by a well informed and right minded observer.

The General Manager, Liquor Control, filed an application for leave to appeal in the Supreme Court of Canada on June 23, 1999.

The General Manager also applied to the Court of Appeal for an order staying execution of the judgment of that Court until either leave was refused by the Supreme Court of Canada or, if leave was granted, until the Court rendered a decision on the appeal. The application sought a stay to permit the continued operation of the Liquor Appeal Board and all other tribunals, boards and commissions operating under the laws of British Columbia whose appointments are made at the pleasure of the Lieutenant-Governor in Council or a Minister, either expressly or by operation of section 20(1) of the Interpretation Act, R.S.B.C. 1996, c. 238.

In an oral decision dated July 21, 1999 (BCCA 468), Madam Justice Ryan granted the stay with respect to the Liquor Appeal Board and its senior inspectors. Madam Justice Ryan did not extend the stay to other tribunals, boards and commissions. She stated at paragraph 14 of her decision that, "although the judgment of this court might be relied upon to set aside decisions of other similarly constituted tribunals, the orders made by those tribunals are valid until properly set aside by a competent tribunal."

The Supreme Court of Canada granted the General Manager's application for leave to appeal on March 16, 2000. At the hearing of this application, I was advised by respondent's counsel that that appeal is unlikely to be heard by the Supreme Court of Canada until the fall of this year, and that a judgment is unlikely to be rendered on the appeal until some 10 to 18 months from the present time.

The claimant's explanation for bringing on the present application before the board at this time, in light of the Ocean Port decision, is to seek to ensure that before two weeks of hearings actually proceed, its claim for compensation will be heard in front of a tribunal with the requisite jurisdiction. The issue posed by claimant's counsel, Ms. McBain, on this application is identical in nature to the issue which was before the Court of Appeal in Ocean Port; that is to say, whether the Expropriation Compensation Board is independent of the executive branch of government. In particular, does the board lack security of tenure? Prior to this application being heard, the claimant signalled its position that the board does lack sufficient security of tenure, that the decision in the Ocean Port case is binding on the board, and therefore the board does not have jurisdiction to hear the claimant's claim for compensation.

Respondent's counsel, Ms. Crowhurst, appeared on this application to make submissions in two capacities: first, as counsel for the expropriating authority and, second, on behalf of the Attorney General for the Province of British Columbia, who, as the board has previously ruled, has the right to be heard under his statutory power to conduct litigation for or against the government in relation to issues of the nature raised by the claimant's motion. Respondent's counsel indicated that she would be arguing in support of the board's jurisdiction.

However, as a preliminary matter, respondent's counsel argued that where, as in the present instance, lack of independence is alleged, the board whose appointment process is being challenged ought to have separate representation on that issue and that such separate representation typically would occur at judicial review or on appeal, not at the initial hearing. Ms. Crowhurst noted the Court of Appeal's comment in Ocean Port that institutional independence must be assessed with regard to "operational reality," and expressed concern, for example, that she would not be in a position to offer evidence concerning the board's actual operations. She urged the board to decline to adjudicate the claimant's motion so that it could be heard fully with full representation and proper evidence in another forum. In the meantime, she submitted, in the absence of a court order to the contrary, the board should simply proceed to hold the compensation hearing.

I did not accept the respondent's submission in this respect for several reasons. First, it seemed clear to me on well-established case authority that the board is vested with the jurisdiction to determine whether it has jurisdiction in a particular matter, and that what the board determines in that respect, in the first instance, may well be of assistance to a Court in the event of any later judicial review or appeal. Second, at my invitation, counsel to the board was, in fact, also in attendance at the hearing of this application, in a position to make open submissions during the hearing, if necessary, with respect to the board's jurisdiction. Third, I was satisfied that, in my capacity as chair of the board, I could take judicial notice from personal knowledge of the board's operations, including in this instance the terms under which members are appointed to the board.

The board is established under section 53 of the Expropriation Act. The provisions which I consider relevant to this application are as follows:

53.	(1)	The Lieutenant Governor in Council must establish an Expropriation Compensation Board composed of a chair, vice chair and other members the Lieutenant Governor in Council may appoint.
	(2)	The chair and vice chair
		(a)	must be appointed for a 5 year term, and
		(b)	may be reappointed for further terms, none of which may exceed 5 years.
	(3)	Other members of the board
		(a)	must serve on a full or part-time basis as the Lieutenant Governor in Council may order.
		(b)	must be appointed for a 3 year term, and
		(c)	may be reappointed for further terms, none of which may exceed 3 years.

Briefly summarized, and not necessarily in the order in which they were advanced, the claimant's position that the board lacks jurisdiction to hear the claimant's compensation claim in light of the Ocean Port decision is founded on the following propositions:

First, notwithstanding that fixed terms are set out in the governing legislation, the chair, the vice chair, and all of the members of the board are in reality appointed at the pleasure of the Lieutenant-Governor in Council, pursuant to section 20(1) of the Interpretation Act, which states:

20.

(1)

An authority under an enactment to appoint a public officer is authority to appoint during pleasure.

Second, by fixing the term of a full-time appointment at pleasure, as in the case of the chair and vice chair of the board, the Lieutenant-Governor in Council may, on the authority of the decision of the British Columbia Court of Appeal in Preston v. British Columbia (1994), 116 D.L.R. (4th) 258, make itself liable to pay for the full term of the contract if an officer is dismissed without cause, but this does not mean that the appointment is not determinable at pleasure.

Third, fixing the terms of office for part-time board members, appointed to panels as needed, is illusory and no better than appointments at pleasure, dismissal from which, the claimant submits, probably carries with it no common law right of redress similar to that which may be available to full-time appointees.

Fourth, the appearance of lack of independence in the board which results from appointments being made at pleasure is exacerbated in this instance by particular Order in Council appointments or reappointments which do not comply with the Expropriation Act and which exhibit what the claimant terms "discretionary interference of the executive branch of government in the security of tenure of the Board members."

Fifth, while courts have recognized the need for flexibility in determining the requisite level of independence of a tribunal from the executive branch of government, such flexibility does not apply to tribunals such as this board, which perform adjudicative tasks.

Sixth, in that respect, the hearing processes of this board bear a close resemblance to those of the impugned Liquor Appeal Board. The decisions of this board, like those of the Liquor Appeal Board, have economic consequences that extend in some cases to the imposition of penalties. In short, the claimant says, this board performs an adjudicative function equal to or beyond that of the tribunal under consideration in Ocean Port, and its standard of security of tenure must accordingly be equal to or higher than that applied in the Ocean Port case. Since board members also enjoy the same protections and privileges accorded to judges of the Supreme Court under section 12 of the Inquiry Act, R.S.B.C. 1996, c. 224, the claimant submits that the level of the board's independence should be akin to that of the Supreme Court or, in any case, extremely high.

Seventh, lthough the board in two previous decisions, Douglas Lake Cattle Company Ltd. v. British Columbia (Ministry of Transportation and Highways) (1991), 45 L.C.R. 30, and Glendale Trading Ltd. v. British Columbia (Minister of Transportation and Highways) (1997), 63 L.C.R. 52, has determined that it has the requisite degree of independence to be able to undertake its adjudicative tasks, those decisions rely on case authority which, in light of the decision in Ocean Port, can no longer be regarded as applicable.

The respondent's position is that the board does have jurisdiction to carry out its adjudicative role and that the decision by the British Columbia Court of Appeal in the Ocean Port case is distinguishable on a number of grounds. Briefly summarized, its arguments are as follows, and again not necessarily in the order advanced:

First, the chair, vice chair and members of the Expropriation Compensation Board enjoy security of tenure which is fixed in section 53 of the governing legislation. This is in contrast with the chair and members of the Liquor Appeal Board, all of whose appointments are expressly said to be "at pleasure" under its governing legislation. In the respondent's submission, section 20 of the Interpretation Act which speaks of appointment "during pleasure" does not apply to fixed term appointments such as those made to the Expropriation Compensation Board.

Second, although the Ocean Port decision at one point appears to question whether part-time fixed term appointments can ever meet the standards for independence established in earlier decisions, notably R. v. Valente (1985), 24 D.L.R. (4th) 161 (S.C.C.), the real issue in Ocean Port was appointments at pleasure, and the Court of Appeal's comment with respect to part-time appointments should therefore be construed as obiter dictum. The respondent points to other decisions of the Supreme Court of Canada, notably R. v. Lippe (1991), 64 C.C.C. (3d) 513, and Katz v. Vancouver Stock Exchange (1995), 138 D.L.R. (4th) 424, in which part-time appointees appear to have met with the approval and says these decisions continue to be authoritative, despite Ocean Port.

Third, the Supreme Court of Canada, in decisions such as Matsqui and 2747-3174 Quebec Inc. v. Quebec (Regie des permis d'alcool) (1996), 140 D.L.R. (4th) 577, has recognized that the requisite degree of independence from the executive branch must be flexibly applied, depending on such considerations as the nature of the tribunal and the interests at stake. The respondent submits that the appointment process with respect to the Expropriation Compensation Board ought to be at a lower end of what she called the "independence spectrum" from tribunals and boards with broader powers, such as those of the Liquor Appeal Board. The liquor licensing scheme considered in Ocean Port was found to embody in its statutory framework and powers of suspension and enforcement something akin to quasi-criminal sanctions. By contrast, the respondent says, the Expropriation Compensation Board has no analogous power of suspension which can affect a party's business operations through its decisions, is not engaged in enforcement actions arising from the decisions of government officials, and does not take government policy decisions into account by, for example, ruling on the merits of an expropriation.

Fourth, the Court of Appeal's reasons in Ocean Port are grounded, the respondent says, in the Court's interpretation and application of the Supreme Court of Canada's decision in Regie, a case which, the respondent notes, turned on application of the Canadian Charter of Rights and Freedoms and, in particular, the Quebec Charter of Rights and Freedoms, to the administrative tribunal in question. Respondent's counsel invited me, in effect, not to feel bound by Ocean Port on the basis that the Regie decision is completely distinguishable both from the Ocean Port fact situation and the statutory framework which governs the Expropriation Compensation Board.

Fifth and finally, the respondent submits that in the present case the parties have already acquiesced to the board's jurisdiction. An allegation of bias through perceived lack of institutional independence renders the jurisdiction of the board merely voidable, not void ab initio. The respondent, citing in particular two decisions of the Federal Court of Canada, Re jurisdiction of a Human Rights Tribunal (AECL Canada Ltd.), [1986] 1 F.C. 103, and Zundel v. Canada (Human Rights Commission), [1999] 3 F.C. 58, argues that any question of bias much be raised at the earliest opportunity and, in any event, before proceedings commence. Otherwise, the respondent says, the party arguing bias is deemed to have waived such objections. In this instance, where proceedings have been underway since 1991, the board has already rendered two orders, the Ocean Port decision was rendered nearly one year ago, and in the meantime a lengthy compensation hearing has been scheduled to begin within a matter of days, the claimant has by its course of conduct waived its right to challenge the independence of the board.

Before turning to what I consider to be the determinative question on this application, I wish to comment on some of the other submissions made by the parties.

My first observation has to do with the level of institutional independence required of this board in light of the nature of the tasks it performs and the interests at stake. The claimant has asserted that, given its statutory mandate, the requisite degree of independence from the executive branch of government must be extremely high, while the respondent has argued that the board should be located at the lower end of the independence spectrum in relation to tribunals and boards with broader powers.

It was, in my view, highly significant to the Court of Appeal's decision in Ocean Port that the Liquor Appeal Board exercised the power to impose sanctions for violations of statutes comparable to that possessed by courts of law. The Expropriation Compensation Board, by contrast, has no powers of suspension or enforcement which might be seen as akin to the power to impose quasi-criminal sanctions. The only express power within the Expropriation Act to impose a penalty, which is pursuant to section 47, is for an unreasonable delay in proceedings by any of the parties appearing before it. The board also has the discretion to disallow a portion of a claimant's costs, pursuant to section 45(5), a provision which the board in the past has interpreted as being intended to discourage inflated or frivolous claims. On this point, it seems to me, the legal and factual framework underpinning the Ocean Port decision is distinguishable from that of this board.

Nevertheless, the board does exercise the power to make compensation decisions which may be of serious economic consequence. The formality of its pre-hearing and hearing procedures, including the express adoption of a number of the Supreme Court Rules and the rules of evidence, is, in my opinion, a reflection of the perceived requirement for scrupulous fairness. Where an owner is unwillingly compelled to surrender private land for public use, the law has long taken the view that the owner should be fully compensated for what has been lost. Because such takings of private land most frequently emanate from bodies within the executive branch of government having the statutory power to expropriate, or from authorities such as municipalities and school districts constituted under provincial legislation, the importance of the board's actual and perceived independence from the executive branch in its decision-making role is apparent.

In the judgment of the Supreme Court of British Columbia in Whitechapel Estates Ltd. v. British Columbia (Ministry of Transportation and Highways) (1999), 66 L.C.R. 193, Mr. Justice Macdonald noted that the Expropriation Act creates in the board a special forum which, in the absence of agreement, must determine compensation whenever any expropriating authority takes land. At paragraph 5 (p. 197 L.C.R.) of the judgment, Mr. Justice Macdonald said as follows:

Exclusive jurisdiction in that regard is given to the ECB. The ECB adheres to the pretrial procedures that govern this court and is clearly a quasi-judicial rather than a purely administrative tribunal.

Accordingly, without seeking to locate precisely where on the so-called spectrum of independence the board sits in relation to other tribunals such as the Liquor Appeal Board, I acknowledge that the level of the board's institutional independence must be high.

My second observation goes to the respondent's submission that I should distinguish Ocean Port on the basis that the Court of Appeal's decision with respect to the Liquor Appeal Board relied on cases involving the application of the Canadian Charter of Rights and Freedoms or the Quebec Charter of Rights and Freedoms. In respondent counsel's respectful submission, the Court of Appeal erred in doing so.

I have already noted that the Ocean Port decision is under appeal to the Supreme Court of Canada, and I expect that the Court of Appeal's reference to Charter cases will be one of the issues to be argued on appeal. To my knowledge, it has never been suggested that the statutory framework under which the Expropriation Compensation Board operates involves, or may involve, application of Charter principles. However, it is not for this board to undertake, in effect, to overrule the Court of Appeal and I must expressly decline the invitation to do so.

I turn now to what I have previously alluded to as being the determinative question on this application. It seems to me that the nub of the issue to be determined, as Ms. McBain for the claimant acknowledged in response to my inquiry, is whether appointees to the Expropriation Compensation Board are, or are not, appointed at pleasure so as to bring into play the considerations set out by the Court of Appeal in the Ocean Port decision.

It is important in this regard to have reference to the actual language of the order made by the Court of Appeal in Ocean Port. As set out at paragraph 3 of Madam Justice Ryan's decision, granting a stay, the order states:

THIS COURT ORDERS that the fact that the Liquor Appeal Board serves at the pleasure of the Lieutenant-Governor in Council denies the Liquor Appeal Board security of tenure, a component of the independence of that Tribunal.

The fact that members of the Liquor Appeal Board were appointed at pleasure was apparent from section 30.1 of its constitutive statute, as I have already cited. At the hearing of the appeal, the respondent urged the Court to look beyond the statute and to assess the Liquor Appeal Board's institutional independence with regard to its operational reality. Counsel for the Board on appeal noted the existence of the Order in Council which fixed the terms of its members, and the actual practice confirming that the members did serve fixed one-year terms which in some cases had evidently been renewed for a number of years in succession. Although the Court considered this evidence, it was nevertheless unable to reach the conclusion that these arrangements provided requisite security of tenure so long as the Lieutenant-Governor in Council had the right to terminate the appointments at pleasure. The Court fastened on what it called "the normal rule" which was this: "Offices held at pleasure may be terminated without cause."

In the present case, the claimant argues for an interpretation that, in my view, turns that analysis on its head. Here, the constitutive statute provides for appointment of the chair, vice chair and the other members of the board for fixed terms of either five or three years, as I have recited, without any reference to those appointments being "at pleasure." The claimant submits that it is necessary to go beyond what is set out in the Expropriation Act and, in effect, to "read in" that those appointments are made at pleasure through the application of section 20(1) of the Interpretation Act. Indeed, by the claimant's reasoning, appointments to all tribunals in this province are at pleasure in light of that provision, although some statutes, not including the Expropriation Act, may afford appointees a measure of protection from arbitrary dismissal by specifying that termination will only be "for cause."

I disagree with the claimant's argument as to the comprehensive scope of section 20(1) of the Interpretation Act. In my view, that provision is limited in its application by section 2(1). Section 2(1) reads: "Every provision of this Act extends and applies to every enactment, whether enacted before or after the commencement of this Act, unless a contrary intention appears in this Act or in the enactment." [Emphasis added] With respect to the Expropriation Compensation Board, in my opinion a "contrary intention" is apparent in the governing legislation.

It is perhaps germane to observe that the British Columbia Council of Administrative Tribunals has recently completed a study of the appointment process involving some 45 tribunals, entitled "Report on Independence, Accountability and Appointment Processes in British Columbia Tribunals." In a case comment on the Ocean Port decision which appeared in the September 1999 number of The Advocate (vol. 57, part 5), which was included in the claimant's book of authorities on this application, the author, T. Murray Rankin, Q.C., makes the following observation at page 716:

As a practical matter, the elimination of at-pleasure appointments for part-time members should not be too difficult a legislative task, given the BCCAT report that only eight of the tribunals studied, constituting only 18% of the total, still have members serving at pleasure.

I am persuaded by the respondent's submission that, at least for the purposes of determining security of tenure, there are really three kinds of appointments to tribunals in this province. First, there are those to bodies such as the Liquor Appeal Board, discussed in Ocean Port, and the Motor Carrier Commission, discussed in the Preston case, which are appointments at pleasure because the constitutive statute expressly says so. Second, there are those to bodies such as the Expropriation Compensation Board, where the appointments are for fixed terms specified in the statute. And, third, there are those to bodies where the constitutive statute is silent as to the term of the appointment. The respondent says, and I agree, that it is this limited third category to which section 20(1) of the Interpretation Act applies.

It follows that section 20(1) does not apply to appointments made to the Expropriation Compensation Board, which are for fixed terms, not at pleasure. Accordingly, in my view, the Ocean Port decision is clearly distinguishable because the chair, vice chair and the members of this board enjoy sufficient security of tenure, one of the components of tribunal independence and the only component in issue in that case.

I agree with the respondent that the general comment concerning part-time members by the Court of Appeal was not necessary to its decision, which simply concerned appointments at pleasure, and may be regarded as obiter dictum. In my view, the reasoning with respect to the independence of part-time members set out in this board's decision in Glendale Trading Ltd. remains persuasive and authoritative. The board in that case stated at p. 61 (63 L.C.R.):

Part-time members of the board have tended to be lawyers, appraisers or similar professionals in private practice, for whom the board appointment is one source of income, but not a career. They have a degree of security of tenure and remuneration as set out in the Douglas Lake decision of the board. This structure ought not to raise an apprehension in a fair-minded person, aware of the facts, that the typical part-time member is so worried about continued appointment as to consciously or unconsciously favour the government at all, let alone in a "substantial number of cases." Thus the board rejects Mr. Burke's submission that it lacks the appearance of institutional independence.

I also take notice of the operational reality of the board which is that the chair, vice chair and other members of the board have, in fact, always been appointed for fixed terms in accordance with the constitutive statute, and there has been no instance in which any of those appointees has been terminated prior to the expiration of his or her term.

The claimant referred to what it said were defects in certain Orders in Council appointing members to the boards as evidence of "discretionary interference of the executive branch of government in the security of tenure of the board members." In my view, only two of those alleged defects need be considered on this application.

First, I would acknowledge that, on their face, some recent Orders in Council appointing members contain an ambiguity in failing to specify whether the members have been appointed on a full-time or part-time basis. However, the operational reality is that it has always been understood and accepted by all concerned that the members in question, some of whom are re-appointees, have been appointed on a part-time basis.

Second, the claimant also put in evidence certain Orders in Council indicating that members have been appointed for a one year rather than a three year initial term, contrary to the provisions of the Act. As I pointed out in the course of the hearing, this was the result of mere administrative inadvertence, and that although the claimant was evidently unaware of this fact, the Orders in Council were subsequently amended to provide for three year terms. I reject the claimant's inference that there has been discretionary interference by the executive branch of government in these matters.

Because of what I have already determined, I consider it unnecessary to deal with the respondent's submission that the claimant has already acquiesced to the jurisdiction of the board and is not now in a position to challenge its independence.

For all of the foregoing reasons, it is my determination that, notwithstanding the decision of the Court of Appeal in Ocean Port, the Expropriation Compensation Board has the jurisdiction to adjudicate the claimant's application to determine compensation. The compensation hearing which is scheduled to begin on April 10, 2000, can therefore proceed.