April 11, 2000 (69 L.C.R. 197)

REASONS FOR DECISION

1.  INTRODUCTION

[1]  The principal issue in these applications was whether the Tariff of Costs Regulation, B.C.Reg 189/99 ("the Tariff"), deposited June 28, 1999, was applicable to the bills that are the subject of an advance cost review pursuant to section 48 of the Expropriation Act, R.S.B.C. 1996, c. 125 (the "Act"). in the three cases under consideration.

[2]  If the Tariff was applicable to the bills that are the subject of an advance cost review in these three cases, the secondary issue was the form in which legal and appraisal bills should now be presented for advance costs under section 48 or final costs under section 45. The respondent, the Ministry of Transportation and Highways ("MoTH") wants the legal and appraisal bills to be in a bill of costs format that indicates the scale, each item that is being claimed, and the number of units being claimed, pursuant to the Tariff. MoTH requests that the Board prescribe a rule or form or practice directive as to how the written bills presented to the authority, and/or to the board for review must be set out. The claimants assert that the Tariff does not specify how the bills are to be presented and that the board does not have authority or jurisdiction to "legislate" by prescribing a rule or form or by making a practice directive. The claimants submit that if the Tariff is applicable, the respondent could undertake the extra work of taking the information from the bills of the lawyer or appraiser as rendered to the claimants and calculating how much was payable under the Tariff.

[3]  I heard this application alone in my capacity as vice chair of the Board and in exercising the powers and jurisdiction of the Board under section 26 of the Act.

[4]  There were a number of related applications in each of the specified files. MoTH brought applications in the C.R. All Trucks Ltd. and the Riga Development Ltd. files (which are related files) and the Associated Building Credit Ltd. file for:

i	a review of legal and appraisal accounts pursuant to section 48(2) of the Act and the Tariff;
ii	an order that costs payable are the amounts prescribed in the Tariff and not the "actual legal, appraisal and other costs";
iii	the board to prescribe a rule or form or make a practice directive that written bills submitted to expropriating authorities pursuant to section 48 of the Act indicate the item, the scale and the number of units being claimed under the Tariff, pursuant to section 27 of the Act and sections 9 and 15 of the Expropriation Compensation Board Practice and Procedure Regulation (B.C. Reg 452/87)("the Practice and Procedure Regulation") and the Tariff;
iv	further, or in the alternative, the board to prescribe a rule or form or make a practice directive requiring all claimants to use the prescribed form in accordance with the Tariff for all cost reviews under section 45 or 48 of the Act, pursuant to section 27 of the Act and sections 9 and 15 of the Practice and Procedure Regulation and the Tariff.

[5]  It was agreed that the submissions would apply to all three cases.

[6]  In all of these cases the expropriation of land occurred prior to the Regulation coming into effect when it was deposited on June 28, 1999 with the Registrar of Regulations pursuant to the Regulations Act, R.S.B.C. 1996, c. 402. The Form A applications for determination of compensation for C.R. All Trucks Ltd. and for Riga Developments Ltd were filed on April 9, 1999. The Form A for Associated Building Credits Ltd. was filed on August 15, 1996. In these three files, the claimants' counsel had submitted legal accounts and in some cases an appraisal account to MoTH and requested reimbursement for his clients. The accounts were submitted in the form in which they had been sent to the claimants, with time sheets and disbursement records attached, indicating the services performed, who performed them, the date on which they were performed, the time spent, and the disbursements incurred, together with receipts where applicable. MoTH replied requiring that the accounts for all services after June 28, 1999 be resubmitted in an attached bill of costs format that indicates the scale, the items listed in the Tariff that are claimed, and the number of units that are claimed for each item. The claimants have not resubmitted the accounts and MoTH has made no payment.

2.  LEGISLATIVE FRAMEWORK

[7]  The relevant sections of the Act are:

Advance payment of costs
48	(1)	An owner may, from time to time after an expropriation notice or an order under section 5 (4) (a) has been served on the owner but before the hearing has begun, submit a written bill to the expropriating authority consisting of the reasonable legal, appraisal and other costs that have been incurred by the owner up to the time the bill is submitted.
	(2)	On receiving a bill under subsection (1), the expropriating authority must either promptly pay the bill or apply to have the bill reviewed by the chair.
	(3)	If the expropriating authority fails to comply with subsection (2), the owner who submitted the bill may apply to the chair to have the bill reviewed.
	(4)	At a review under subsection (2) or (3), the person conducting the review must, after taking into account all relevant circumstances, assess the reasonableness of the bill and may make an order with respect to its payment, accordingly.
	(5)	Section 45 (7), (11) and (12) apply to reviews under this section...
Legal and appraisal costs
45	(3)	Subject to subsections (4) and (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.
	(5)	The costs payable under subsection (3), (4), (5) or (6) are
		(a)	the actual reasonable legal, appraisal and other costs, or
		(b)	if the Lieutenant Governor in Council prescribes a tariff of costs, the amounts prescribed in the tariff and not the costs referred to in paragraph (a).
	(6)	If an expropriating authority and a person referred to in subsection (3) agree on the amount of compensation or damages, but do not agree on the amount of costs to be paid, the costs must be determined by the chair.
	(7)	If the board determines the amount of compensation or damages to which a person is entitled, the amount of costs must be determined by the chair.
	(8)	In a determination of costs under subsection (8) or (9), the following considerations must be taken into account:
		(a)	the number and complexity of the issues;
		(b)	the degree of success, taking into account
			(i)	the determination of the issues, and
			(ii)	the difference between the amount awarded and the advance payment under section 20 (1) and (12) or otherwise;
		(c)	the manner in which the case was prepared and conducted.
Powers and duties of the board
27	(1)	The board may, subject to the approval of the Lieutenant Governor in Council, prescribe rules, consistent with this Act, that govern the board's practice and procedure and the exercise of its powers.
Power to make regulations
54	(1)	The Lieutenant Governor in Council may make regulations referred to in section 41 of the Interpretation Act.
	(2)	Without limiting subsection (1), the Lieutenant Governor in Council may make regulations
		(a)	respecting the practice, procedure or any other similar matters, that the Lieutenant Governor in Council considers necessary or advisable for the better carrying out of Parts 3 and 4, and
		(b)	prescribing a tariff of costs for the purposes of sections 45 and 48.

[8]  Sections 9 and 15 of the Practice and Procedure Regulation provides:

9	(1)	The forms prescribed in these rules are to be used with such variations as the circumstances in this case require;
	(2)	Where no form is prescribed, the board may, on application or inquiry, determine and direct what form shall be used.
15		Subject to the Act and these rules, the board may issue practice directives.

[9]  Section 27(2) of the Interpretation Act, R.S.B.C. 1996, c. 238, provides:

27

(2)

If in an enactment power is given to a person to do or enforce the doing of an act or thing, all the powers that are necessary to enable the person to do or enforce the doing of the act or thing are also deemed to be given.

[10]  Specific provisions in the Tariff include:

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.

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

[11]  Schedule 1 of the Tariff for legal costs lists 23 items, most of them related to formal steps in the proceeding, and largely similar to those in the Tariff that forms part of Appendix B for Party and Party Costs in the Rules of Court of the Supreme Court of British Columbia. There are a few items in Schedule 1 of the Tariff that are not in Appendix B including reviewing and advising in relation to a payment made pursuant to section 20 and instructing an expert witness if the witness prepares a report. Conversely, there are a number of items in Appendix B that are not in Schedule 1 of the Tariff. Schedule 2 of the Tariff for real estate appraisal costs sets out 8 items including correspondence and meetings, inspection, market research, preparation of a report, preparation for a hearing, and attendance at the hearing. Both Schedules specify a set number of units or a minimum and maximum range of units specified for each item and the Tariff contains guidelines on how the number of units are to be determined. The Tariff establishes three scales of difficulty and provides guidelines on how the board, following adjudication of compensation, may fix which scale of difficulty is applicable to the matter. The Tariff also sets out the amount of money that is to be paid for each unit of legal and real estate appraisal costs under the three scales. With respect to Schedule 1 of the Tariff, for those items that are the same as those allowed in Appendix B, the number of units allowed for a particular item are somewhat similar. One significant difference between Schedule 1 and Appendix B is the amount allowed for each unit: under the three scales in the Tariff the amount per unit for Schedule 1 ranges from $100 to $180, with a default position under Scale 2 of $140. The amount per unit under the five scales in Appendix B is $40 to $100, with a default position under scale 3 of $80.

3.  MoTH's POSITION

[12]  MoTH says that the Act at sections 54 and 45(7) specifically contemplates the Lieutenant Governor in Council making a regulation prescribing a tariff of costs. The Tariff came into effect on June 28, 1999 and specifies at section 2 that it applies to all costs incurred on or after the date the regulation comes into force. Section 45(7) of the Act provides that the costs payable to an owner are:

(a)	the actual reasonable legal, appraisal and other costs, or
(b)	if the Lieutenant Governor in council prescribes a tariff of costs, the amounts prescribed in the tariff and not the costs referred to in paragraph (a). (emphasis added)

Section 48 of the Act provides that section 45(7) applies to the reviewer's assessment of reasonableness for advance payment of costs. MoTH states that this legislative framework clearly sets out that pursuant to section 54 of the Act, the Lieutenant Governor in Council has supplanted the actual reasonable cost standard in section 45 (7)(a) and replaced it with the Tariff which must be used for all legal and appraisal costs incurred after June 28, 1999.

[13]  Notwithstanding the Tariff's supplanting of the former actual reasonable cost standard, MoTH says that some principles from earlier cost reviews apply. The onus continues to be on the claimant in cost reviews. MoTH maintains that a submission of a written bill triggers section 48 and a properly drawn bill of costs is essential for a meaningful taxation. An advance cost review under section 48 must be conducted in accordance with procedures set out in the Act. Reviews under section 48 are intended to be more summary than final reviews under section 45. Pursuant to section 48 (2) the expropriating authority should either "promptly pay" or "apply to have the bill reviewed by the chair". It should not take on the role of the reviewer. See Ferguson v. Minister of Forests (1998), 63 L.C.R. 219 (B.C.E.C.B.); Nygard v. Surrey (1989), 42 L.C.R. 279 (B.C.E.C.B.); 402847 B.C. Ltd. v. MoTH (1995), 58 L.C.R. 147 (B.C.E.C.B.).

[14]  With respect to the format of the bill, MoTH says that since the costs must be paid pursuant to the Tariff, the bill must be presented in the Tariff format. The lawyer for the claimant is the only person with the knowledge to prepare the bill in the Tariff format and, in any event, the onus is on the claimant to justify the bill. If the bill is not in the Tariff format, MoTH has no authority to pay the bill. MoTH will have no choice but to apply under section 48 for the bill to be reviewed. The chair or delegated member will not be able to conduct the review unless the bill is in the Tariff format. Thus, if the bill is not in a Tariff format, the aim of section 48 to provide summary and expeditious advance costs to the claimant will not be met and unnecessary and costly applications to the board for review of costs will result.

[15]  As a result MoTH requests that the board prescribe a rule or form or make a practice directive that written bills submitted to the expropriating authority, and/or that written bills submitted to the board for a section 45 or section 48 review, be in accordance with the Tariff and indicate the scale, the items being claimed and the number of units being claimed. Subject to the approval of the Lieutenant Governor in Council, the board has authority under section 27 of the Act to prescribe rules to govern the board's practice and procedure. The board also has authority under section 9 of the Practice and Procedure Regulation to determine and direct, on application, a form that is to be used. Under section 15 of the Practice and Procedure Regulation the board has authority to issue practice directives. The board has authority to order the claimants to provide written bills in Tariff format under section 27(2) of the Interpretation Act, which provides that a person who has statutory power to do something is deemed to have all the necessary powers to enable the person to do that act. At common law the board also has all necessary powers that will enable it to carry out the powers that are expressly given in the Act. See Chrysler Canada Ltd. v Canada (Competition Tribunal), [1992] 2 S.C.R. 394 at 410.

[16]  In addition, the board has jurisdiction to control its own proceedings and in a number of cases the board has looked to the Rules of Court to fill gaps in its own prescribed procedures. The Tariff is similar to the Tariff in Appendix B of the Rules of Court and a lawyer submitting a bill to the assessor is required to submit the bill in a prescribed format

[17]  Finally, MoTH submits that if the whole of section 48 is construed so that there is no repugnancy or inconsistency, then the bill submitted to the expropriating authority must indicate the scale, the items that are claimed and the number of units claimed. See Pierre-Andre Coté, The Interpretation of Legislation in Canada, 2nd ed., 1991, at 259.

4.  CLAIMANTS' POSITION

4.1 Applicability of the Tariff

[18]  The claimants submit that the Tariff should not be applied to the three cases in this application. While they acknowledge that section 45(7)(b) provides for the Lieutenant Governor in Council to prescribe a tariff of costs, they say that this section and the resulting Tariff must be read and interpreted in the context of the Act as a whole. They remind the board that the principle in compulsory taking statutes is to provide compensation that makes a Claimant "economically whole". See Minister of Highways for British Columbia v. Richland Estates Ltd. (1973), 5 L.C.R. 85 at 86 (B.C.C.A.). This principle, they say, applies not only to the various heads of compensation, but to reimbursement of costs and interest under section 45 through 48 of the Act. When the Tariff is reviewed with this principle in mind, it falls short in several ways:

i	The Tariff operates as a "cap" on the ability of a Claimant to be reimbursed for legal and appraisal expenses
ii	When read with section 45(7)(b) of the Act, the Tariff appears to eliminate the right of a Claimant to be reimbursed for those "other costs" other than legal and appraisal costs incurred in asserting its claim for compensation;
iii	The Tariff purports to eliminate the right of a Claimant to interest on legal and real estate appraisal accounts submitted for reimbursement.

[19]  Following the hearing the claimants made further submissions in answer to MoTH's suggestion that "other costs" might be permitted as disbursements to legal accounts.

[20]  With respect to the last point disallowing interest on overdue legal and appraisal accounts, the claimants refer to the significant authority that has acknowledged the principle that to achieve economic wholeness, interest payments on overdue accounts are necessary. See Tidmarsh v. Regional District of Comox-Strathcona (1995), 55 L.C.R. 81 (B.C.S.C.). There are a number of cases in which this board has ordered interest to be paid on legal and appraisal accounts in certain circumstances where the authority has been late in paying them.

[21]  The claimants go on to say that one of the primary rules of construction is that statutory provisions are paramount over regulations when there is conflict between them. A regulation must be interpreted in the context of its enabling statute. Further, under the Tariff a Claimant faces a reduction in recoverable costs and the claimants submit that only express words in a statute can operate to take away rights given by statute. If there is any ambiguity in an amending statute, it is a rule of construction that an amending statute be interpreted with the presumption against interfering with vested rights. See Ruth Sullivan, Driedger on the Construction of Statutes, 3rd ed., (Butterworths: Toronto, 1993) at pp 185-6 and p 246.

[22]  In any event, the claimants submit that the Tariff should not operate in these three files where the expropriations and the filing of the Form A's occurred prior to June 28, 1999. It is unfair that the Tariff operate to take away the rights of the claimants with respect to reimbursement of costs. These rights accrued when the claimants' land was taken and vesting notices were filed in the land title office. Decisions have already been made with respect to filing a claim and retaining experts etc. The claimants are now faced with the possibility that the cap on reimbursement in the Tariff will result in a cost to them that they had not anticipated when they commenced their claims. In addition, the claimants say that as a result of the Tariff, they have lost the right to claim reimbursement for those "other costs" other than legal and appraisal costs incurred in asserting their claim for compensation.

4.2 Procedure for submitting bills

[23]  If the Tariff is applicable to the present claims, the claimants say that under section 48(1) of the Act, the only requirements set out for the bills is that the owner "submit a written bill to the authority consisting of the reasonable legal, appraisal and other costs that have been incurred by the owner". The claimants are in compliance with this provision if they submit the accounts that they have received from their lawyer or appraiser, as long as these accounts set out sufficient description of the work that has been performed, the time spent doing the work and the hourly rate of the persons doing the work, so that the reasonableness of the accounts may be assessed. The Tariff itself does not specify the form in which the accounts should be presented. The claimants say that if they submit the accounts in the usual form that the lawyers and appraisers render to the claimants, the authority can apply the Tariff items by transposing the accounts into any format it wishes. Without clear statutory requirement, the claimants say that they should not be asked to undertake the extra task of submitting an account in a Bill of Costs format that reflects the Tariff, especially when the Tariff imposes a potential cap on the claimants' recovery of legal and appraisal costs. In addition, the claimants submit that the transposing of accounts into a Bill of Costs format that reflects the Tariff will lead to unnecessary contention as to how the services should properly be categorized.

5.  ANALYSIS

5.1 Applicability of the Tariff

[24]  The claimants have made a number of arguments against the Tariff on the basis that it reduces the claimants' ability to recover their actual reasonable costs and as a result, it limits the likelihood of restoring the claimants to a position to where they are economically whole. However, after consideration of all of these arguments, it is my opinion that, in order to find that the Tariff does not apply to these three claims, I must decide one of two things: either the Tariff is in conflict with the Act and consequently the Act prevails over the Tariff or the Tariff takes away vested rights from the three claimants.

5.1.1 Whether the Tariff is in conflict with the Act

[25]  At p. 185, Driedger on the Construction of Statutes discusses the principle that subordinate legislation cannot conflict with statutes passed by the legislature:

In so far as possible the courts seek to avoid conflict between statutory and regulatory provisions and to give effect to both. Where conflict is unavoidable, however, the statutory provision prevails.

This commentary is a corollary of the general principle that legislation is to be construed if at all possible so that there is no repugnancy or inconsistency. See Coté, The Interpretation of Legislation in Canada, at p. 259. Thus, it is only if there is a clear and obvious conflict between the Tariff and the Act that the Act will take precedence.

[26]  I agree with the claimants that expropriation legislation is generally to be construed in a manner that makes an expropriated owner economically whole. With respect to costs, it is clear from the authorities that expropriated owners ought to be in a very different position from a private litigant engaged in civil litigation. In Nygard v Surrey, at pp. 282-3, the former chair of this board, J.H. Heinrich, Q.C., reviewed a number of reports and cases that considered the claimant's costs in expropriation proceedings. A number of reports emphasized the financial vulnerability of the owner and the need for cost provisions that would ensure an owner was able to obtain appropriate professional advice. On the other hand, the former chair also noted authorities which pointed out the drawbacks which could face expropriating authorities in terms of reimbursing claimants' costs. Chair Heinrich cited the taxing officer in Lenjo Enterprises Ltd. v. Municipality of Metropolitan Toronto (No. 3) (1977), 12 L.C.R. 13 at 14, who observed that as a result of a series of taxations of expropriation matters, he had concluded that "many solicitors acting for claimants seem to have conducted themselves in an expansive manner such as to suggest an acute awareness that their clients will not be required to pay their bills." In any event, the presumption in favour of full compensation, including full and actual costs, is a principle of construction and does not override clear legislative direction. See E.C.E. Todd, The Law of Expropriation and Compensation in Canada, 2nd ed. (Carswell Co. Ltd., Toronto, 1992) at p. 38.

[27]  The difficulty the claimants face in this application is that both sections 45(7) and 54 of the Act specifically contemplate the Lieutenant Governor in Council making a regulation prescribing a Tariff to replace the standard of actual reasonable costs incurred by the claimant. There is no issue that when the Act was first passed in 1987, the legislature considered a tariff of costs being prescribed that would supplant the initial standard contained in section 45(7)(a) of "actual reasonable costs".

[28]  There then remains the question of whether there are any conflicts between the Act and the Tariff. The claimants allege that the Tariff will operate as a "cap" on the ability of a claimant to be reimbursed for legal and appraisal expenses. The Tariff provisions clearly set out certain limitations on reimbursement for costs. However, it is not clear that applying the standard as set out in the Tariff will limit reimbursement in a particular matter to a greater extent than applying the standard of "actual reasonable costs", although in some situations it may do so. If we assume that it will operate as a "cap" as the claimants allege, the important point to be made is that such a "cap" may be in conflict with a presumption for full compensation, but there is no specific provision in the Act that embodies full compensation for costs. The claimants urge me to consider section 45(3) and 45(7)(a). Section 45(3) says that a person whose interest in land is expropriated is entitled to be paid costs necessarily incurred for the purpose of asserting his or her claim. On the face of it this section contains no limitation but for the requirement that the costs are necessarily incurred for the purpose of asserting a claim for compensation. However, section 45(7) further defines the costs payable under 45(3): section 45(7)(b) stipulates that the amounts to be paid if a tariff of costs has been prescribed are the amounts prescribed in the tariff and not the actual reasonable legal, appraisal and other costs set out in section 45(7)(a). Section 45(7)(b) very clearly replaces section 45(7)(a) in these circumstances. When section 45(3) and section 45(7) are read together, in my opinion, there is no conflict. If there is no tariff in place, the person whose interest is expropriated is entitled to be paid those costs necessarily incurred as actual reasonable costs. If a tariff has been prescribed, the person whose interest is expropriated is entitled to be paid those costs necessarily incurred as set out in the Tariff.

[29]  Another potentially relevant provision is section 48(1). It continues to state that the owner may from time to time submit a written bill consisting of the reasonable legal, appraisal and other costs to the authority. I note that section 48(1), unlike section 45(7)(b), does not refer to actual reasonable costs but only to reasonable costs. Section 48(6) states that section 45(7) applies to cost reviews under section 48. Section 48(1) may be read with the Tariff (and section 45(7)) so that the written bill that is submitted to the authority consists of the reasonable legal, appraisal and other costs to be paid as set out in the Tariff under section 45(7)(b), as opposed to being paid as the actual reasonable costs under section 45(7)(a). On the essential question of what the claimant is to be paid for costs, there is no conflict between the Tariff and the Act. On the preliminary question of what the claimant is to submit in its written bill, there need not be any inconsistency between the Tariff and the Act if the two are read together in a manner that seeks to avoid conflict.

[30]  The claimants also say that the Tariff, taken together with section 45(7)(b), results in the claimants being foreclosed from claiming all "other costs" formerly available under section 45(7)(a). It is true that the Tariff only addresses legal and appraisal costs and makes no mention of "other costs" from such professionals as planners, engineers, architects, traffic analysts, or business valuators or, indeed, any other type of other costs. While section 48 continues to provide that the claimant may from time to time submit a written bill consisting of the reasonable legal, appraisal and other costs, section 45(7)(b) stipulates that the amounts to be paid if a tariff has been prescribed are the amounts prescribed in the tariff. However, even if I assume the claimants' submission on the loss of "other costs" is correct, similar reasoning applies as to the submission on the Tariff creating a "cap". The Tariff's purported elimination of a claimant's entitlement to "other costs" may be in conflict with a presumption for full compensation, but it is not in conflict with section 45(7)(b) of the Act. The Act contemplates a Tariff being created that replaces the former standard of costs and there is nothing in the Act that precludes the Tariff creating a "cap" on total payment or that requires the Tariff to provide continued payment of "other costs".

[31]  Although I do not need to decide this point in this application where only legal and appraisal costs are under consideration, I will say that I do not agree with the claimants' submission that the wording of the Tariff and section 45(7)(b) necessarily precludes payment of "other costs". The drafting of the Tariff in relation to "other costs" could have been more precise. However, when the Tariff and sections 45 and 48 are read in a manner that seeks to avoid conflict, I believe the proper construction is that the Tariff replaces actual legal and appraisal costs while "other costs" continue to be billed and paid as before. This construction is also consistent with a presumption of making the claimant more economically whole. In order to make this construction I do not need to specifically consider whether "other costs" are billed as disbursements on legal accounts or billed independently.

[32]  In addition, the claimants submit that the Tariff eliminates the right of a claimant to interest on legal and appraisal accounts submitted for reimbursement. Section 5(6) of the Tariff does provide that there shall not be an allowance for interest on legal or appraisal costs. Again, while an elimination of a potential claim for interest may be in conflict with a presumption for full compensation, it is not in conflict with any provision of the Act. Section 46 of the Act does not say that it applies to orders for costs and the board has held that any claim for interest is discretionary. See El and El Investments Ltd. v. School District No. 36 (Surrey) (1996), 59 L.C.R. 210. There is substantial authority from the board that interest on professional accounts has been recoverable on the basis that the professional entered into a contractual agreement with the claimant that interest would be payable on overdue accounts. In this sense the interest is similar to a potential disbursement that the claimant might be responsible for paying, depending on whether the claimant or the authority paid the account promptly, and whether the professional pressed for all of its rights under the agreement. In any event, the existence of case authority interpreting a previous standard of costs in no way precludes a new standard being prescribed by regulation which may be in conflict with some of the earlier authorities. Unless there is conflict with the Act, there is no basis for overruling the Tariff.

5.1.2 Whether the Tariff takes away a vested right

[33]  With respect to the submission that the Tariff should not apply to files in which expropriation occurred before June 28, 1999, the issue is whether the claimants had vested rights to actual reasonable costs at the time of the taking. If a legislative provision purports to take away a vested right, there is a presumption that it is not meant to apply. This presumption is stronger if it is a regulation that purports to take away the vested right. The presumption is also stronger depending on the degree of unfairness that would result. However, the presumption about losing vested rights remains a presumption and can be rebutted by signs of clear legislative intention. See Driedger on the Construction of Statutes, pp. 551-2, and Coté, The Interpretation of Legislation in Canada, p. 151.

[34]  The first point to be addressed is the issue of distinguishing those rights that are vested and those that are not. At pp. 530-5, Driedger on the Construction of Statutes discusses the difficulties in recognizing vested rights. Criteria include whether the interest concerned is sufficiently important to be a right that should be protected, whether the right arose at a specific point in time when the claimant can assert that it has vested, and whether a grave injustice would result if the interest is lost.

[35]  Considering this test in the context of expropriation, there is no doubt a strong case that the claimants had a vested right, arising on the date of taking, to compensation for the market value for the land, for example. However, in this case the question is whether actual reasonable costs are a similar right that vests in the claimant from the date of the taking?

[36]  It seems to me the most relevant consideration is that section 48(1) provides for periodic payments that are variable depending on the services that have been provided to date. An owner may, from time to time, submit a written bill to the expropriating authority consisting of the reasonable costs that have been incurred by the owner at that point in time. I note that the Tariff itself, at section 2, states that it applies to costs that were incurred after the date this regulation (the Tariff) comes into force. At the date of taking, costs, unlike the compensation for market value, could not be ascertained. Driedger on the Construction of Statutes says that the courts do not recognize that a person who receives periodic benefits has a vested right in them remaining the same. At page 533, he quotes Dickson J. in Gustavson Drilling (1964) Ltd. v M.R.N., [1977] 1 S.C.R. 271, a case involving taxation:

No one has a vested right to continuance of the law as it stood in the past ...

The mere right existing in the members of the community or any class of them at the date of the repeal of a statute to take advantage of the repealed statute is not a right accrued.

Driedger goes on to observe:

Where the government undertakes to regulate a matter to protect the interests of particular groups ... individuals who organize their affairs on the assumption that "promised" advantages will not be withdrawn do so at their own risk.

[37]  I think that this analysis is applicable to the present case and, as a result, I do not accept that the claimants had rights to actual reasonable costs that had vested at the time of the taking.

[38]  In any event, I have already found that there is clear legislative intent for a tariff of costs to replace the initial standard of actual reasonable costs. This intention is sufficient to rebut any presumption about the protection of a vested right to actual reasonable costs, particularly where the Tariff has not been made retrospective in its effect.

5.1.3 Conclusion

[39]  Neither criteria for finding the Tariff inapplicable have been met. A determinative consideration in this issue is the clear legislative intent that permits a tariff of costs being prescribed to replace the initial standard of actual reasonable costs. I have decided that the Tariff is applicable to the three files under consideration.

5.2 Procedure for submitting bills

[40]  Having decided that the Tariff is applicable to the present claims, the question remains as to the requirements for the format of the written bills that are submitted by the claimant to the authority or to the board for review.

[41] It is true that the Tariff does not set out how a bill is to be presented. While it is unfortunate that the Tariff did not specify the format of the bills, I have already said that I think section 48(1) of the Act can be read with the Tariff so that the written bill that is submitted to the authority sets out the reasonable legal and appraisal costs that will be paid according to the Tariff. I have also suggested that other costs will be set out and paid as actual reasonable costs in the same manner as before. I agree with MoTH that a written bill cannot be paid in the amounts prescribed in the Tariff unless the services for which costs are sought are set out as particular items listed in Schedules 1 and 2 of the Tariff, together with the number of units claimed for each of the specified items. I also agree with MoTH that the only person with the requisite knowledge who can prepare the bills in this format is the lawyer or appraiser for the claimant. In my opinion a bill of costs that reflects the Tariff is not a translation of a bill that a lawyer or appraiser might send his or her client, but an entirely separate exercise. Preparing a bill of costs that reflects the tariff may be an additional task for the claimant's lawyer (or appraiser) that was not necessary under the standard of actual reasonable costs. However, it is in the claimant's interest that the bill of costs be prepared by his or her lawyer who did the work, rather than by the authority. I do not accept that a bill of costs that reflects the Tariff will lead to excessive disputes about how to categorize various types of work.

[42]  The board has authority under section 27 of the Act to prescribe rules to govern the board's practice and procedure. Under section 9 of the Practice and Procedure Regulation the board also has authority to determine and direct that a form be used. The board has frequently referred to the Rules of Court for guidance in determining its practice and procedure. See Roadmaster Auto Centre Ltd. v. City of Burnaby (1994), 53 L.C.R. 161 (B.C.E.C.B.). The Tariff is similar to the Tariff in Appendix B of the Rules of Court and Rule 57(28) of the Rules of Court prescribes that a bill of costs that is to be assessed shall be in Form 67. This form stipulates that the items that are claimed from the Tariff in Appendix B are to be listed, together with the number of units claimed for each item in a second column. There is a third column for the number of units allowed by the assessor for each item. The scale must be specified. Total units are translated into dollars according to the specified scale. Claimed disbursements and taxes are also set out. Finally, there is provision for the costs, disbursements and taxes as allowed by the reviewer to be totalled.

[43]  After considering the positions of both parties, the board directs that any bill for legal or appraisal services submitted to the board for review under section 48 or 45 of the Act set out the claimed items listed in Schedules 1 and 2 of the Tariff, together with the number of units claimed for each of the specified items, the scale that is claimed, the disbursements that are claimed and the taxes that are claimed. This prescribed format is similar to Form 67 of the Rules of Court. The board does not direct the format in which the bills are to be submitted to the expropriating authority since this is outside the board's practice and procedure.

6. CONCLUSION

[44]  I have concluded that the Tariff is applicable to the three files under consideration. In my opinion, the claimants have failed to fully appreciate the importance of the unequivocal legislative intent that permits a tariff of costs to be prescribed to replace the initial standard of actual reasonable costs. They have attempted to argue for a restrictive interpretation of the Tariff in order to support their case that the Tariff ought not to apply. They have suggested that various lacunae in the Tariff are fatal. However, when the Tariff and Act are read together in a manner that, on the one hand minimizes inconsistency and on the other hand maximizes the potential for achieving economic wholeness under this new standard, the Tariff is not in conflict with any provision of the Act and it does not take away any vested rights.

[45]  I have also concluded that a claimant should set out a bill of costs for review under sections 48 or 45 that is in accordance with the Tariff. In particular, I have directed that any bill for legal or appraisal services submitted to the board for review should set out the claimed items listed in Schedules 1 and 2 of the Tariff, together with the number of units claimed for each of the specified items, the scale that is claimed, the disbursements that are claimed and the taxes that are claimed.