June 15, 1995, E.C.B. No. 72/91/89 (56 L.C.R. 138)

Between: Kenneth Charles Branscombe and
Rosemarie Violet Branscombe
Claimants
And: Her Majesty the Queen in Right of the Province of British Columbia
as represented by the Minister of Transportation and Highways
Respondent
Before: Fiona M. St. Clair, Vice Chair
Appearances: Reinhard Burke, Counsel for the Claimants
Sarah I. Macdonald, Counsel for the Respondent

 

1. THE APPLICATION

On May 25, 1994, the former Chair of this board heard the s. 44 costs application of the claimants, Kenneth Charles Branscombe and Rosemarie Violet Branscombe ("the Branscombes"). In her decision dated October 7, 1994, she awarded them their "reasonable costs of, and incidental to, the application herein". In this application the Branscombes seek a determination of the costs of taxing those costs of the compensation application.

My review of the s. 44 decision indicates that the total amount claimed for fees, disbursements and appraisal accounts was $90,775.21, plus GST, PST and interest. The claim for legal fees and disbursements (exclusive of GST and PST) was $61,2l2.42, of which the Chair awarded the Branscombes $54,587.22 plus GST and PST. The appraisal costs claimed (exclusive of GST and interest) were $29,562.79, and the Chair awarded the sum of $22,552.23, plus GST and interest.

At the hearing of this application by telephone conference on March 30, 1995, Mr. Burke, counsel for the Branscombes, presented two legal accounts from his firm. The first was dated May 26, 1994, and was attached as Exhibit "D" to his own affidavit. In that account, Mr. Burke's firm charged fees of $6,510.00, disbursements of $2,127.37 and taxes of $1,064.92, for a total of $9,702.29. The second account was dated May 31, 1994, and was attached as Exhibit "E" to Mr. Burke's affidavit. That account sets out fees of $3,450.00 plus taxes of $483.00, for a total of $3,933.00. The two accounts, both of which have been paid in full by the Branscombes, total $13,635.29. Of those amounts $8,177.53 has been paid by the respondent, Her Majesty the Queen in Right of the Province of British Columbia as represented by the Minister of Transportation and Highways ("the province"), leaving a balance unpaid at the time of this costs hearing of $5,457.76.

Along with the accounts, I have for consideration two related prebilling reports, which itemize the time spent on each billed item, and indicate which of the two counsel working on the file did each itemized piece of work. These prebilling reports were attached as Exhibits "A" and "B" to Mr. Burke's affidavit.

Mr. Burke was assisted on the s. 44 application by Mr. Jeffrey Frame, who was an articled student during most of the preparation work, and a newly called lawyer for the actual hearing. The Exhibit "A" prebilling report indicates that Mr. Burke spent 37.2 hours on the s. 44 application, all of which was billed to the Branscombes in the Exhibit "D" account. The Exhibit "B" prebilling report indicates that Mr. Frame spent a total of 58.25 hours working on the costs application, but the Exhibit "E" account shows that only 37 hours of this time was actually billed to the Branscombes. The amount claimed by the Branscombes in this application is the amount that was billed, and not the amount that shows on the prebilling reports.

 

2. LEGAL FEES

Ms. Macdonald, counsel for the province, presented me with written submissions on this application. The overall figures she refers to in her written submissions, however, appear to refer to the prebilling reports and not to the actual accounts. For example, she maintained in argument that the total time being claimed by both counsel was 95.45 hours, whereas the actual total time claimed is 73.2 hours. In arriving at the figures I have used in this decision, I have referred directly to the accounts rather than to the written submissions or to the prebilling reports.

Ms. Macdonald raised five objections to the fees claimed in both accounts. She maintained that:

1. Mr. Burke should not be entitled to claim for time spent preparing his first Bill of Costs, which set out only unpaid costs rather than all costs incurred. She argued that it is a legal requirement in s. 44 cases that all costs be presented to the board for its review, and that the approximately 8 hours spent preparing the first Bill of Costs was unproductive and unnecessary.

2. Time spent in relation to a claim for owners' time should not be allowed, because that claim ultimately was not presented to the board in the s. 44 application. She seeks a 1.5 hour reduction for this.

3. Mr. Frame's time represents a duplication of effort where he was taking instructions from Mr. Burke, and elsewhere it is excessive due either to over-preparation or a learning curve or some combination of the two. She argued that Mr. Frame's total time spent should be reduced to a total of 34 hours. (It should be noted here that Ms. Macdonald, in presenting this argument, was proposing a reduction of 24.25 hours from the time logged by Mr. Frame on the prebilling reports. However, as noted above, Mr. Frame's time was already reduced by 21.25 hours in the actual accounts presented, to a revised total of only 37 hours. As a result, the amount claimed for Mr. Frame's time is only 3 hours more than Ms. Macdonald maintained it should be.)

4. Mr. Frame's time should not have been billed at $85/hour while he was a student and $100/hour while he was a newly called lawyer. She alleges that the appropriate rates would be $60/hour and $80/hour respectively. I note that $60/hour for time billed as an articled student was the rate allowed by the former Chair for Mr. Frame in her s. 44 decision.

5. Mr. Burke should not be permitted to charge legal fees for his role as a witness at the s. 44 hearing. This includes preparation and travel time as well as the time he actually spent giving sworn testimony at the hearing, for a total proposed reduction of 14 hours.

The result of these proposed deletions from the time claimed, by my calculations, would be to permit 13.7 hours of Mr. Burke's time and 34 hours of Mr. Frame's time, for a total of 47.7 hours.

In connection with the first of these five items, I accept Mr. Burke's argument that setting out the unpaid time in one document was a sensible approach to take initially, and certainly for the purposes of attempting to negotiate a settlement of the costs issues. I have reviewed the document marked Exhibit "S" to the affidavit of Don Rhone filed at the s. 44 hearing, and headed "Revised Statement of Claimant's [sic] Unpaid Costs to April 30, 1993". I conclude that in any event such a document might well be of some assistance to the board in reviewing a costs application.

As far as the second item (the time spent on the claim for owners' costs) is concerned, I accept Mr. Burke's contention that it was not unreasonable for counsel to spend an hour and a half exploring whether to put forward such a claim. In my view, the Branscombes should be reimbursed for this time.

The third item in dispute relates to Mr. Frame's time. I agree with Ms. Macdonald's submission that the number of hours he billed regarding the s. 44 application is probably the result of some combination of over preparation and a learning curve, both of which are quite understandable for young counsel, but neither of which should be the responsibility of the respondent. Even though Ms. Macdonald only sought to reduce Mr. Frame's time to 34 hours, I find that even this amount of time is excessive, especially in light of the fact that Mr. Frame was assisting very senior and experienced counsel in the field of expropriation law. Because of that, he should have been able to benefit from his consultations with senior counsel in order to cut down on the overall time necessary for him to spend on the file. I therefore reduce the allowable hours billed for Mr. Frame's time from 37 to 25. I break this down by reducing his 10 hours of student time to 8 hours, and his 26 hours of time spent as a lawyer to 17 hours.

With regard to Ms. Macdonald's fourth point, the hourly rates properly chargeable for Mr. Frame's services, I agree with the former Chair's reasons for reducing the articled student hourly rate at the s. 44 hearing, and I see no reason to alter the amount that the Chair saw fit to apply in that context. No further evidence was led before me than was led before her on this issue, and no evidence supporting the reasonableness of those rates, other than the opinion of counsel, was presented to. I agree with Ms. Macdonald that $100/hour is too high a rate for a newly called lawyer on a costs application. I therefore fix the rates of $60/hour for his student time and $85/hour for his lawyer time.

I reject, however, Ms. Macdonald's argument on the fifth item set out above. It was certainly not unreasonable for Mr. Burke to have taken the stand as a witness in the s. 44 application. He was the most knowledgeable person to be able to provide the board with evidence about the accounts being presented, and he could not have acted as both witness and counsel. In addition, there was enough at issue to justify Mr. Burke in providing oral testimony rather than swearing an affidavit. He gave testimony about what he knew from having been chief counsel for the Branscombes throughout the proceedings. As such, his legal knowledge and experience was called upon, even during his testimony. In my view, it is appropriate to reimburse the Branscombes for the reasonable time Mr. Burke spent preparing for and giving his testimony, as well as travelling to the costs hearing.

I have now dealt with all of the objections raised by Ms. Macdonald to the accounts presented. In response to those objections, I have not reduced any of Mr. Burke's time, but I have reduced Mr. Frame's time from 37 to 25 hours.

My task in reviewing a bill of costs under s. 44 generally centres on dealing with the objections of opposing counsel (opposing counsel tending to raise most if not all of the objections that can reasonably be made to an account). However, if no opposing counsel were to appear to dispute the appropriateness of any aspect of an account under s. 44, it would still be my statutory duty to apply the terms of the section and the common law interpreting it, to the particular account under consideration. Similarly, if opposing counsel does not raise certain objections that I find to be relevant, I must nonetheless consider them. In this case, I have concerns about the total amount of time billed for both counsels' services regarding the taxation, even though Ms. Macdonald did not argue that the accounts were excessive in general terms.

The decision of this board in Nygard v. Surrey (District) (1989), 42 L.C.R. 279 reviews in detail the task of the board in reviewing costs under s. 44. The board's initial objective is to determine whether the nature of the work done was necessary, and if so, to determine whether the amount claimed for it was reasonable. The reasonableness of the amount claimed is to be determined in the context of the statutory direction provided in s. 44 (11), and also with a view to the common law criteria for reasonableness as codified in s. 71.1 of the Legal Profession Act, S.B.C. 1987, c. 25. Among these factors to be considered are the complexity and difficulty of the issues involved, the degree of success, the skill and specialized knowledge required of the lawyers involved and the time reasonably expended. I have considered all of this in coming to my decision, (including my reduction of Mr. Frame's time dealt with above) and I have set out below the most important aspects of those considerations.

I find it very unusual that a costs hearing that took only one day should result in legal accounts of $13,635.29. Ms. Macdonald, in an attempt to show that the $8,177.53 already paid by the province was "overly generous", referred me to the earlier decisions of the board in Nygard , supra, and Gerestein et al. v. District of Abbotsford (No. 2) (1990), 43 L.C.R. 262. The awards granted in those cases for the costs of s. 44 applications were $1,150.00 and $1,275.00, respectively. In Nygard, counsel for the claimants claimed costs based on four hours of preparation and a counsel fee of $750.00 for a one-day hearing. In Gerestein, the hearing was approximately four hours in length, but no mention is made of how much preparation time was allowed.

In this case, it appears that 20 hours are claimed for both counsel for the hearing date itself (although some of that time is referred to in the prebilling reports as preparation and travel), and approximately 53.2 hours in preparation and negotiation time. I accept that both Mr. Burke and Mr. Frame would reasonably have had to spend the 10 hours each has recorded on the date of the hearing. This means that of the 37.2 total hours billed by Mr. Burke, the remaining 27.2 relate to preparation and negotiation. I have already reduced Mr. Frame's time based on Ms. Macdonald's specific objections, from 37 hours to 25 hours. Since 10 of these 25 hours relate to the hearing date itself, this means that 15 hours of his remaining time relate to preparation and negotiation. The total preparation time is now 42.2 hours. This stands in stark contrast to the 4 hours referred to in the Nygard decision, and what must be approximately the same amount of time in the Gerestein decision. While I am not bound by these earlier decisions, and while each costs case must be decided on its own merits, it can be useful to refer to other cases in terms of establishing a "ball park" figure for comparison purposes. There is clearly a huge difference here, which may or may not support my concern that too much time has been claimed on this matter. In order to determine whether the 42.2 hours of preparation time is warranted, I have referred to the criteria set out above.

Dealing first with the complexity and difficulty of the issues, I am drawn to a comment made by the former Chair in the s. 44 decision in this case. In her reasons, she quotes Mr. Burke as having described the compensation proceedings as a "pretty average run of the mill case". I note that there is nothing in her decision to indicate that the costs hearing was any different from the main hearing in that respect, nor did either counsel in this application maintain that there were any complex or difficult issues that were dealt with. Mr. Burke did argue that the province insisted on the Branscombes "proving every nickel" of the accounts. Ms. Macdonald disputed this, and argued that while she did insist that the bills of costs reflect all of the time and disbursements, ultimately the only part of Mr. Burke's time that was at issue at the hearing was 6 hours plus some travel time, and that the only other issues were the proper hourly rates of both counsel, the appropriate per item rates of some disbursements, and the amount of time spent by Mr. Frame overall. It did appear to me from the representations of both counsel that it was probably fairly late in the day when the issues were narrowed to this extent, and that therefore slightly more preparation time than might otherwise have been necessary, was required on Mr. Burke's and Mr. Frame's behalf. However, I do not find that the issues dealt with by the former Chair at the hearing were inherently complex or difficult ones.

Another factor to be considered is the degree of success at the costs application. My calculations indicate that the award made by the former Chair was approximately 85% of the amounts claimed (exclusive of GST, PST and interest), which in my view is substantially successful.

Also for my consideration is the skill and specialized knowledge required of counsel in preparing for and appearing at the s. 44 application. Since I have already reduced Mr. Frame's time, I am only considering Mr. Burke under this category. Based on my review of the former Chair's s. 44 decision, I am not of the opinion that the preparation for or the conduct of the s. 44 application should have required more than the skill and specialized knowledge possessed by a reasonably competent, average lawyer. In fact, I believe that the majority of the time required to draw the bill of costs could have been expended by a competent legal secretary or legal assistant, rather than by a lawyer of Mr. Burke's standing and experience. The lawyer ultimately responsible for the matter would, of course, have to review and finalize the bill of costs, but I do not believe that it was either necessary or reasonable for Mr. Burke to have devoted as much time to the preparation of the bill of costs as his prebilling report indicates he did.

This overlaps to some extent with the final consideration addressed specifically here, which is the time reasonably expended. While I accept Mr. Burke's contention that the province required him to be prepared to substantiate and explain every aspect of his account until fairly shortly before the hearing date, I am unable, in light of all of the above considerations, to grant a costs award for 27.2 hours of preparation by Mr. Burke. I therefore reduce this amount by 50%, to 13.6 hours.

This brings the total legal time allowed for the costs hearing to 48.6 hours. In my view, this should have been adequate time to prepare for and conduct the s. 44 hearing, especially with someone as experienced in expropriation matters as Mr. Burke at the helm.

My calculations as to what I have allowed by way of legal fees are:

Mr. Frame: 8 hours @ $60.00 $  480.00
  17 hours @ $85.00 $1445.00

Mr. Burke: 23.6 hours @ $175.00 $4130.00

TOTAL FEES:       $6055.00

This amount will, of course, be subject to the appropriately adjusted GST and PST.

 

3. DISBURSEMENTS

The province objected to the Branscombes seeking to recover reimbursement for photocopies charged at $0.35 per page, and for fax surcharge fees of $5.00 per page. The board has previously allowed these charges at $0.15 and $0.20 respectively, and these are the amounts allowed by the former Chair in her s. 44 decision. I agree with her reasons for reducing the charged disbursements to these amounts, and order that the same rates be applied in this matter.

This means that the photocopy disbursements allowed will be 1,486 pages at $0.15 per page, for a total of $222.90, and the fax surcharge disbursements allowed will be 24 pages at $0.20 per page, for a total of $4.80. As with the fees, appropriate adjustments will have to be made to the PST and GST as a result of these changes.

 

4. COSTS OF THIS APPLICATION

Counsel for the province argued that the Branscombes should not recover their costs of this application, on the basis that the amount already paid by the respondent towards the s. 44 hearing costs was generous and more than reasonable. In the alternative, she asked me to fix the costs of this application in order to avoid yet another application to have the amount determined if counsel cannot agree.

My calculations indicate that even with the reductions I have effected, the Branscombes will recover just over $600.00 more than the sum that the province paid voluntarily prior to the hearing. On that basis, some award for costs is warranted. Mr. Burke filed a two and one-half page affidavit with attached schedules in support of the application, and the application itself took about two hours. On the basis of the degree of success achieved, and the time reasonably expended, I fix those costs at $400.00 inclusive of fees and disbursements.

 

 

Government of British Columbia