May 16, 2000 (69 L.C.R. 263) (BCSC
decision 73 L.C.R. 122)
ECB Control No.: 30/93/184, 31/93/184, 32/93/184
||Albert Cecil and Lilian Rose
Frank Herbert and Mildred Johanna Jamieson
Russell Kowalski in his capacity as executor for
the estates of
Samuel Kowalski and Helen Kowalski
||Town of Creston
||Sharon I. Walls, Vice Chair
||Lisa D. McBain, Counsel for the
J.B. Melville, Counsel for the Respondent
REASONS FOR DECISION
 The three sets of claimants, the Inghams,
the Jamiesons and Mr. Kowalski have each applied for:
a) an adjudication of a portion of the claimants'
claim for compensation that was referred to the chair
by the board in its decision of June 25, 1996 (reported
at 59 L.C.R. 113);
b) a determination of the costs to be awarded to
the claimants pursuant to section 45 of the Expropriation
Act, R.S.B.C. 1996, c. 125 ("the Act");
c) an award for the costs of this costs hearing.
 Each set of claimants had filed separate
applications for determination of compensation but their
claims for compensation and later for costs were heard
together. The claim for costs on this application includes
costs incurred with respect to two expropriations of
the claimants' lands, the first of which resulted in
a consent order declaring the expropriations to be a
nullity and the second of which resulted in a compensation
hearing before the board. At the compensation hearing
the costs of the first expropriation had been claimed
as losses or damages. The board in its compensation
decision, however, referred these costs to the chair
to be considered along with the costs of the second
expropriation. The costs of the first expropriation
are in respect of accounts rendered by the claimants'
solicitors at the time, two planning consultants, and
a communications consultant. The costs of the second
expropriation are in respect of accounts rendered by
the claimants' new solicitors and a real estate appraisal
firm. The total costs claimed by each of the three sets
of claimants inclusive of fees, disbursements, and taxes
but excluding interest are as follows:
The evidence was that virtually all of these costs,
together with other costs not put forward at this review,
have already been paid by the three sets of claimants.
 The position of the respondent, the Town
of Creston, at the conclusion of this cost review was
that, with respect to the costs for the first expropriation,
each set of claimants was only entitled to $100 for
general advice on the expropriation provided by Mr.
Niedermayer, the initial solicitor for the claimants.
Creston said that no other costs could be claimed under
the Act. With respect to the second expropriation, Creston
agreed to the hourly rate charged by Mr. Burke, the
Kamloops solicitor who was eventually retained by the
claimants, and who acted for them at the compensation
hearing. Creston also agreed generally to the time that
Mr. Burke spent on behalf of the three sets of claimants.
However, Creston took the position that there should
be some reduction of Mr. Burke's accounts on the basis
of overall reasonableness in relation to the degree
of success at the compensation hearing. While it had
communicated this position to the claimants before the
cost review, it is my understanding that Creston did
not agree to a specific sum with respect to Mr. Burke's
accounts until the conclusion of the cost review. At
the same time, during argument at this cost review,
Creston agreed to reimbursement of approximately 87%
of the total appraisal accounts from Interwest Property
Services (1991) Ltd. to each of the three sets of claimants.
 I conducted the hearing of the application
in my capacity as vice-chair, exercising the powers
and jurisdiction of the chair under section 26(6) of
 Creston, expropriated a 16.5 foot strip from
the front yards of each of the three claimants' premises
for the widening of Hillside Street. Creston announced
the street-widening project in October 1988 and the
claimants were part of a group of mostly elderly residents
who opposed the project. The claimants were opposed
to losing such a large strip of their front yards and
being that much closer to the street. Part of their
objection was that they did not see the need for Hillside
Street being widened to four lanes when it was not a
busy thoroughfare. They also objected to the 16.5 foot
strip being expropriated entirely from one side of the
street. The claimants were hoping that if Hillside Street
was to be widened that it could be widened within its
existing right of way, or in the alternative, that the
16.5 feet of land that was required could be taken from
both sides of the street. They also suggested other
streets that could be widened instead of Hillside Street
and the advantages of these options over the Hillside
 There were about ten individuals in the group
who opposed the street-widening, including the three
sets of claimants. They met a few times with the city
administrator and raised a number of questions about
the project proceeding in the manner that Creston proposed.
Mr. and Mrs Ingham were in their sixties at this time
and most of the other people in the group were in their
seventies. Mr. Ingham took some leadership role in the
group. Herb Legg was a son of a friend of the Inghams
and he also took an interest in the group's opposition
to the project, although he did not live on Hillside
Street. Mr. Legg had some experience as a reporter and
as a media advisor and he assisted the group in mounting
a letter campaign to try to persuade Creston to change
its proposed plans for the project. He also appears
to have taken on the role as spokesperson and advisor
for the group. In late 1989 the group sought legal advice.
Their aim continued to be to try to prevent Creston
from proceeding with the widening of Hillside Street
or, in the alternative, to widen it in a way that would
have less impact on their properties. Despite the opposition,
Creston continued with its proposed plans to widen the
street. Hillside Road had been designated as a grid
road in the town's transportation plans as far back
as the 1970s. The Province offered a matching grant
for improvement to a grid road standard that required
a width of 14 metres, and the necessity of the further
16.5 feet. After a certain period of time, Creston had
already purchased 16.5 feet from a number of other property
owners on the same side of Hillside Street and presumably
had some interest in the project proceeding with all
the additional land coming from that side of the street.
Creston commenced proceedings to pass the first expropriation
bylaw in December 1990, filed Form 1 expropriation notices
in February 1991 and filed vesting notices for the relevant
properties in the Land Title Office in April 1991. After
the claimants had retained Mr. Burke, an application
for judicial review of the validity of the expropriation
was filed and eventually, on March 2, 1992, a consent
order was entered declaring this expropriation a nullity.
 Creston immediately began proceedings for
a second attempt at expropriation and filed the vesting
notices in August 1992. These expropriations eventually
led to the compensation hearing before the board from
February 26 to 29, 1996, in which the claims were heard
together. Reasons for decision were issued on June 25,
1996. The claimants received the following compensation:
A. The Inghams were awarded compensation of $30,359
for their entire claim for the partial taking from
two parcels of land. The Inghams had received a total
of $25,200 in advance payments. During the hearing,
the Inghams and Creston agreed to the amount of compensation
for the land taken from the two parcels of $24,800
plus one disturbance damage of $484. The items that
remained in issue and were decided by the board included
the use of the before and after method of evaluation
and the loss in value to the remainder, the loss of
amenities in the land taken and their replacement,
and the claims for personal losses for the loss of
privacy and increased noise as a result of the Inghams
now residing closer to the road. In addition to the
one agreed expense of $484, the Inghams claimed for
a number of different mitigating measures totalling
$27,048. The board awarded an additional $5,075 to
what had been agreed. The $10,000 claim for personal
losses was denied.
The Inghams also claimed for their share of the costs
of the first expropriation as damages. During the
hearing Creston conceded that the Inghams were entitled
to their share of the costs incurred during the first
expropriation under section  although Creston
reserved the right to argue that much of the claim
was not reasonable. Both parties agreed that these
costs should be referred to the chair under section
. The board awarded the Inghams their reasonable
costs under section  including the costs
of the first expropriation.
B. The Jamiesons received total compensation of $9,017
for the partial taking. Creston had delivered cheques
totalling $3,850 as advance payment but these were
never cashed. During the hearing, the Jamiesons and
Creston agreed to the amount of compensation for the
land taken of $5,600. The Jamiesons claimed $4,905
for two mitigative measures to the remainder plus
$6,430 for loss in value to the remainder. The board
awarded an additional $3,417. The Jamiesons $10,000
claim for personal losses was also denied. For the
same reasons as provided above, the Jamiesons were
awarded their reasonable costs including the costs
of the first expropriation under section 45.
C. Mr. Kowalski received total compensation of $12,528
for the partial taking. Creston had previously paid
$3,100 in advance payment. During the hearing, Mr.
Kowalski and Creston agreed to the amount of compensation
for the land taken of $7,000. Mr. Kowalski claimed
$7,000 for two mitigative measures as well as $7,925
for the loss in value to the remainder. The board
awarded an additional $5,028. Mr. Kowalski was not
awarded anything for personal losses for loss of privacy
and increased noise. He was awarded what the board
termed a nominal amount of $500 for his personal losses
in being unable to continue his hobby as a ham radio
operator as a result of the street-widening. This
was from claimed personal losses altogether of $3,400.
For the same reasons provided above, Mr. Kowalski
was awarded his reasonable costs including the costs
of the first expropriation under section 45.
 An appeal from these decisions was taken
by the Inghams and Mr. Kowalski's estate. The Court
of Appeal allowed the appeal on the issue that the board
had erred in construing section  of the Act
when it deducted general benefits from the compensation
awarded. As a result, the awards for the loss of value
of the remaining lands for the Inghams and Mr. Kowalski
were set aside. See 66 L.C.R. 161. The Inghams and Mr.
Kowalski and Creston could not agree on the awards to
be substituted and a further compensation hearing on
this issue was held after this cost review was concluded.
 At the commencement of this cost review hearing,
held in Cranbrook, Creston brought a preliminary application
claiming that the board did not have jurisdiction under
section 45 to hear the Inghams and the Kowalski estate's
claims for costs at this time. As a result of the Court
of Appeal decision there was a further compensation
hearing scheduled for these claimants. Section 45(9)
45 (9) 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.
Creston took the position that the board had not yet
determined all of the compensation for the Inghams and
the Kowalski estate and therefore the section 45 cost
application for these claimants was premature.
 I dismissed Creston's application. Pursuant
to section 45(9) the board had determined the amount
of compensation. It was true that the Inghams and the
Kowalski estate might need to bring a further application
under section 45(9) for an additional cost review. There
was no wording in section 45(9) requiring that all items
of compensation had to be finally determined with all
avenues of appeal exhausted before a section 45 hearing
on costs could be heard.
4. First expropriation
4.1 Whether costs of the first expropriation
are recoverable under section 45
 The costs that related to the first expropriation
were claimed as disturbance damages at the compensation
hearing. At p. 115 of the reported decision (59
L.C.R. 113) the board states:
At this hearing Mr. Melville, for Creston, agreed
that the reasonable costs of the earlier process should
be recoverable by the claimants, but he reserved the
right to argue that much of the claim was not reasonable.
Both parties agreed that those costs should be referred
to the Chair for determination under [s.45]
of the Expropriation Act ...
As a result the costs that related to the first expropriation
were referred to this cost review.
 The relevant parts of section 45 of the
45 (1) If there is an inquiry, the inquiry
officer may order the expropriating authority to pay
a participant the reasonable costs, to be set by the
inquiry officer, incurred by the participant for the
purpose of participating in the inquiry.
(3) Subject to subsections (4) to (6), a person whose
interest or estate in land is expropriated is entitled
to be paid costs necessarily incurred by the person
for the purpose of asserting his or her claim for
compensation or damages.
(7) 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
(9) 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.
(10) In a determination of costs under subsection
(8) or (9), the following considerations must be taken
(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
Under section 45(3) costs may be claimed if they are
"necessarily incurred by the person for the purpose
of asserting his or her claim for compensation or damages".
 Creston submitted that virtually all the
work done by the solicitors, the planning consultants
and the communications consultant with respect to the
first expropriation was to try to stop the expropriation
and therefore was not for the purpose of "asserting
a claim for compensation". As a result, Creston's
position was that all the costs of the first expropriation
should be excluded but for $100 for each set of claimants
for that portion of Mr. Niedermayer's accounts in which
preliminary advice with respect to the taking was provided.
Creston also questioned whether the board had jurisdiction
to award costs under the Act with respect to the first
expropriation, when it was agreed to be a nullity. However,
Creston conceded that costs incurred prior to the valid
second expropriation can be claimed, as long as they
are for the purpose of asserting a claim for compensation.
 The claimants referred me to Dell Holdings
Ltd. v. Toronto Area Transit Operating Authority
(1997), 60 L.C.R. 81 (S.C.C.) and the comments of Cory
J. at p. 91 "that the Act should be interpreted
in a broad, liberal and flexible manner...". It
was the claimants' position that, if section 45 was
interpreted in this manner, then the costs associated
with the first expropriation could be claimed.
 Section 45(3) was considered in Nygard
v. Surrey (District) (No. 2) (1989), 42 L.C.R. 279
(B.C.E.C.B.). The former chair of this board, J.H. Heinrich
Q.C., at p. 284 compared the Ontario and Alberta
legislation on reimbursement for costs to the British
Columbia provision in section [45(3)]:
In Ontario and Alberta, the reasonable costs actually
incurred for the purpose of determining compensation
are recoverable from an authority. However, the practice
in Ontario is that such costs must be directly related
to a compensation hearing, otherwise they are disallowed.
[The Ontario provision provides for costs "for
the purpose of determining the compensation payable"]
In Alberta, s. 39 of the Expropriation Act, R.S.A.
1980, c. E-16 reads, in part, as follows:
The reasonable legal ... costs actually incurred
by the owner for the purpose of determining the
compensation payable shall be paid by the expropriating
The Alberta Land Compensation Board has adopted a
more liberal interpretation in that all costs are
recoverable if incurred as a direct result of the
expropriation; it is not required that such costs
be directly tied to the compensation hearing.
The chair went on to say that in British Columbia the
question of whether costs claimed were necessarily incurred
for the purpose of asserting a claim for compensation
will depend on the facts in each case and will be reviewed
in the context of section [45(3)] (emphasis added
in the original).
 Under section 19(4), if an expropriation
is formally abandoned, the owner is entitled to his
or her reasonable legal, appraisal and other costs.
Under section 45(1) of the Act, if there has been an
inquiry into whether the proposed expropriation is necessary
to achieve the objectives of the expropriating authority,
a participant may be awarded his or her reasonable costs
in order to participate. While neither of these sections
applies to the present case, they support a liberal
construction of section 45(3).
 I note that these costs were originally
brought as damages under sections 34 or 40. The relevant
parts of these sections provided:
34 (1) An owner whose land is expropriated
is entitled to disturbance damages consisting of the
(a) reasonable costs, expenses and financial losses
that are directly attributable to the disturbance
caused to the owner by the expropriation; ...
40 (1) Subject to section 44, if part of the
land of an owner is expropriated, he or she is entitled
to compensation for
(a) the reduction in market value to the remaining
(b) reasonable personal and business losses
that are directly attributable to the taking or
that result from the construction or use of the works
for which the land is acquired.
Under these sections the costs or losses need only
be "reasonable" and "directly attributable"
to the "disturbance" or the "taking"
or "result from the construction or use" of
the street-widening project. On reflection, these expenditures
should likely have been pursued under sections 34 and
40. As a result, in the unusual circumstances of this
case, I am not going to entirely exclude the costs arising
under the first expropriation by an overly restrictive
interpretation of section 45(3). The next step is to
consider each of these costs in turn and determine whether
the costs were necessary and reasonable.
4.2 Legal bills - first expropriation
4.2.1 Claimants' evidence
 The claimants first sought legal advice
in the summer of 1989 from Donald Niedermayer. There
were five sets of neighbours, including the three sets
of claimants who shared the costs of obtaining advice.
Mr. Niedermayer gave sworn evidence at the cost hearing
by telephone. Mr. Niedermayer had been a lawyer in practice
with the firm Robertson Niedermayer & Miles in Cranbrook,
British Columbia. He was called in 1974. His practice
had been in general litigation including civil, criminal,
and some appearances before administrative boards. He
is no longer in practice, and at the time of the cost
hearing worked in an educational institution in Mexico.
He did not have his files with him and other than some
correspondence and bills supplied by the claimants,
he was testifying from his memory of the events, some
eight years prior.
 Mr. Niedermayer was consulted as to whether
Creston could be stopped from pursuing the street-widening
project with the resultant 16.5 foot taking. His work
initially focussed on enquiring into the issues already
raised by the claimants: Creston's reasons for pursuing
this option, whether Creston had appropriate budgeting
for the project and why Creston wanted to proceed with
a street-widening at this time when the traffic counts
on Hillside Street were so low. Mr. Niedermayer discussed
several options with the group including some type of
negotiated compromise, requesting an inquiry under section
10 of the Act after the expropriation had occurred,
and making some more general challenge to the expropriation.
He indicated that there were certain risks associated
with these options including a risk that any legal action
might merely delay Creston without stopping the expropriation
in the long run. In mid January 1991, after the expropriation
bylaw had already been passed, Mr. Niedermayer retained
a planning consultant, Ronald Wrigley of Walker Brown
Urban Consultants in Calgary, for some help with disputing
Creston's street-widening plans on safety or transportation
planning grounds. Mr. Wrigley in turn recommended that
a transportation engineer be retained and as a result
Nick Finn, a transportation engineer with BA Consulting
Group Ltd. in Calgary, was retained in mid February
1991. Mr. Finn eventually travelled to Creston and met
with Creston employees to discuss the project on March
22, 1991. Advance payments and expropriation documents
were served on some of Mr. Niedermayer's clients in
early April, 1991 and Mr. Niedermayer advised Creston
that it had failed to comply with the requirements set
out in section  of the Act with respect to
the appraisal reports served with the advance payments.
In the midst of preparation for some type of application
to fight the expropriation, it appears that there was
a dispute between Mr. Niedermayer and Mr. Legg that
resulted in Mr. Niedermayer advising the claimants that
he would no longer act for the group if Mr. Legg continued
as their spokesperson. As a result, Mr. Niedermayer's
role ceased in late April 1991. In May 1991 Mr. Niedermayer
left his practice for a two year sabbatical in any event.
 Robertson, Niedermeyer & Miles rendered
seven accounts from June 4, 1990 until April 17, 1991.
The total fees were $6,554, disbursements were $802.35,
and GST (after January 1, 1991 only) was $382.44, for
a total of $7,738.79. Mr. Niedermayer's hourly rate
was $160 and a junior lawyer in his firm, Mr. Daroux,
who had less than one year of call, charged $100 per
hour. Total hours by Mr. Niedermayer were 24 and by
Mr. Daroux were 30, including only half of Mr. Daroux'
travel time. There were earlier accounts from Mr. Niedermayer
that were not claimed. While the accounts showed total
hours billed and the hourly rate for each lawyer, there
was not the back up of the lawyer's time sheets of time
expended on particular items on particular dates. Nor
was there any back up documentation for disbursements,
including rates charged for photocopying and faxes.
 As a result of the dispute with Mr. Niedermayer,
the claimants consulted Graham Temple, a lawyer who
had been in general practice in Creston for 23 years.
Mr. Temple gave evidence at the cost hearing. Mr. Temple
referred the claimants to Reinhard Burke, a lawyer from
Kamloops with experience in expropriation matters. Mr.
Temple assisted Mr. Burke who was preparing to bring
a petition to challenge the validity of Creston's expropriation,
because Mr. Temple was in Creston and Mr. Burke was
not. Mr. Temple may have drafted some affidavits and
in any event he attended on some of the claimants for
swearing of the affidavits and he also filed the petition.
In the course of this work he communicated with Mr.
Burke. In addition, he helped to negotiate the group's
payment of Mr. Niedermayer's outstanding fees.
 The two bills from Mr. Temple from May and
July 1991 contained $856 in fees, $549.37 in disbursements,
and $91.38 in taxes for a rounded total of $1,497. There
was no detail of the number of hours worked and Mr.
Temple testified that his hourly rate at the time was
either $125 or $150. There was not any back up documentation
for disbursements. Mr. Temple halved his fees in his
second bill from $812 to $406. There were two later
accounts of Mr. Temple that were not claimed.
 The legal accounts from Mr. Niedermeyer
and Mr. Temple that are claimed totalled $9,235.79.
Each of the three sets of claimants paid their one fifth
share of this sum or $1,847.16.
 I note that a petition was brought in Supreme
Court by Mr. Burke with respect to the first expropriation
that resulted in a consent order declaring that the
expropriation was a nullity. No costs are claimed in
this review from Mr. Burke for this proceeding. Mr.
Temple's file contained a draft Bill of Costs drawn
pursuant to the Rules of Court of the Supreme Court
of British Columbia for the judicial review procedure,
dated April 1992. The total legal fees claimed in this
draft Bill of Costs were $1,860, together with $8,539.58
in disbursements. I have no evidence on what costs or
disbursements were agreed or certified under this Bill
of Costs. Reference is made to this Bill of Costs below
because it appears that there was an overlap of expenses
billed as disbursements by Mr. Niedermayer and Mr. Temple
and claimed in this cost review and expenses claimed
as disbursements in the draft Bill of Costs.
4.2.2 Creston's position
 As already described, Creston's position
was that under section 45(3) virtually none of the lawyers'
accounts for the first expropriation could be claimed.
Creston agreed that there was some preliminary advice
on the expropriation from Mr. Niedermayer and therefore
$500 of the Robertson, Niedermeyer & Miles accounts,
or $100 for each set of claimants in this review, should
 My role on a section 45 cost review is to
consider the necessity for and the reasonableness of
the costs claimed by the claimants. In Branscombe
v. MoTH (No. 3) (1995), 56 L.C.R.138 (B.C.E.C.B.)
the then Vice Chair stated at p. 143:
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. [45(10)], 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.
 As a result of taking the position that
virtually all of the costs on the first expropriation
were precluded by the terms of section 40(3), Creston
did not provide me with any other factors to consider
when reviewing the legal accounts on the first expropriation.
In Ferguson v. British Columbia (Minister
of Forests) (1999), 60 L.C.R. 40 (B.C.E.C.B.) the
chair considered the issue of the board raising objections
to costs that had not been raised by opposing counsel
in the context of an advance cost review under section
48. Although the chair's task in conducting a review
of costs generally centres on dealing with the objections
of opposing counsel as it is assumed opposing counsel
will tend to raise most if not all of the objections
that can reasonably be made to an account, the chair
stated at pp. 46-47:
I continue to be satisfied that ... interventions
[by the board] are appropriate in light of the
statutory duty imposed upon the person conducting
the cost review. Under section 48(5) that person must,
"after taking into account all relevant circumstances,
assess the reasonableness of the bill". In my
opinion, the wording of this section requires an assessment
of reasonableness of the accounts submitted even though
the respondent may not have objected to a particular
In my opinion this quotation is applicable to cost
reviews under Section 45 although statutory considerations
are somewhat different than under section 48. In this
case, although opposing counsel had not provided any
further objections to the accounts to do with the first
expropriation on the basis that they were all excluded
by section 40(3), the claimants provided extensive evidence
to justify the accounts. There was testimony from every
person who submitted an account to do with the first
expropriation but for Ron Wrigley, the planner, from
whom there was an affidavit. The claimants' evidence
sought to address the issues of the necessity of the
work, the reasonableness of the account and the basis
for the hourly rate. As a result, I do not see that
the claimants can be said to be caught by surprise by
any intervention that I might make on these issues.
 Dealing first with Mr. Neidermayer's account.
In my opinion, Mr. Niedermayer's efforts to negotiate
with Creston for a narrower taking was a reasonable
step for him to take on behalf of the claimants. The
claimants stated that they would have been satisfied
if the taking had been narrower or had been equal on
both sides of the street. In order to do this Mr. Niedermayer
had to have some understanding of traffic analysis issues
in Creston and he collected information on this topic
from his clients and from Creston. When Creston did
expropriate, Mr. Niedermayer advised Creston that it
had failed to comply with the procedural steps outlined
in section  of the Act. In the circumstances,
although Mr. Niedermayer did not achieve any measurable
success for the clients, he took a number of reasonable
steps to try to achieve some resolution of the matter
arising out of the impending expropriation and to mitigate
the damages that might be suffered by his clients. In
my opinion the costs for those services that attempted
to mitigate the threatened expropriation are a legitimate
 However, it is apparent from reviewing the
letters in evidence that Mr. Niedermayer did not have
previous experience in expropriation matters. Mr. Niedermayer
confirmed this during the review, although he stated
that he had appeared before other tribunals. Review
of Robertson, Niedermayer & Miles' accounts indicates
several entries for researching expropriation law and
review of cases. This board has stated that, when counsel
are inexperienced in expropriation matters, it is reasonable
that the authority should not have to pay for the extra
time spent on reviewing and researching the law. See
Nygard v. Surrey (District) (No. 2).
Similarly the hourly rate which the board has allowed
is related to the lawyer's experience with expropriation
matters. See Gerestein v. District of Abbotsford
(No. 2) (1990), 43 L.C.R. 262 (B.C.E.C.B.).
 Another result of Mr. Niedermayer's lack
of experience with expropriation matters, it appears
to me, was his strategy to seek traffic engineering
advice in January or February 1991 after over a year
of unsuccessful negotiations with Creston, and after
the expropriation bylaw had already passed. The engineer
supplied a lot of detailed information but could not
change what Creston had made clear from the beginning;
namely, that provincial funding was dependent on widening
the road such that the 16.5 foot takings from the claimants'
properties were necessary. The correspondence and Mr.
Niedermayer's evidence indicated that he thought that
traffic engineering evidence might support safety concerns
as a basis for challenging Creston's plans to widen
Hillside Road. Mr. Niedermayer's correspondence indicates
that he hoped to use this information at an inquiry
under the Act, although he had some concern about his
ability to do so when the project appeared to be a linear
development. In the alternative, he appears to have
contemplated a court challenge under the Charter, on
the basis that the project interfered with personal
safety. He also said that, if the expropriation went
ahead, the traffic engineering evidence could be used
in the determination of compensation. In my opinion,
a more experienced counsel in expropriation matters
would have appreciated that the chance of a successful
legal challenge to Creston's project through an inquiry
or under the Charter was remote. In my review of the
engineer's file it is difficult to see how the work
that was done by the engineer could have been used in
a compensation hearing, and I am strengthened in this
view by the fact that it was not used in the compensation
hearing. Creston had already initiated the expropriation
proceedings and it ought to have been clear that the
town had the power to expropriate and proceed with this
project despite the fact that other options were feasible.
I am ignoring the procedural errors in Creston's first
expropriation for the moment. While the claimants were
very anxious that Mr. Niedermayer attempt to stop the
expropriation, the authority should not be held responsible
for costs for work on this strategy which, in my opinion,
counsel ought to have realized was unnecessary and therefore
unreasonable at this time. A majority of the itemized
work beginning in January 1991 appears to be related
to this strategy.
 I also think that the hourly rate for the
newly called Mr. Daroux at $100 in 1990-91 was too high
when compared with the rates of newly called lawyers
allowed by this board for the relevant time frame. See
Branscombe where newly called lawyers hourly
rates in 1994 were reduced.
 As indicated above, I was not provided with
the back up time sheets for Mr. Niedermayer or Mr. Daroux.
In the circumstances, I have reviewed Robertson, Niedermayer
& Miles' accounts and after considering all of the
factors enumerated above, I have made a 60% reduction
in the legal fees. This reduces the legal fees to $2,622.
I fix the GST at 50% or $191.22. GST was only applicable
to the legal services and disbursements after January
1, 1991, although it was largely these services that
were reduced. Taking into account that these services
were rendered for five separate clients, I calculate
the amount allowed to each of the three sets of claimants
whose costs are under review as $562.64 including GST.
 I have already indicated that there was
no back up information provided on charges for disbursements.
One of the disbursements listed on the accounts was
a variable charge for word processing on each account
totalling $70. I do not have any evidence on this item
and the board has rejected fees for word processing
in the past as an item that should be included in overhead.
See Hruschak Estates v. Vernon (City) (No.
2) (1991), 46 L.C.R. 230 (B.C.E.C.B.) at 236. There
are numerous disbursements associated with the planner
and the traffic engineer, including higher amounts for
long distance telephone and faxes, that the authority
should not have to pay since I have found that this
work was unnecessary. Finally, I note that a number
of these disbursements including the word processing
fee and Mr. Daroux's travel expenses appear on the draft
Bill of Costs under the Rules of Court for the judicial
review procedure that was in Mr. Temple's file. It seems
probable that at least some of the more generic charges
such as postage, photocopying, long distance telephone,
and faxes, are also included on this draft Bill of Costs,
as substantial sums are listed for each of these expenses.
I have no evidence on the precise amount of overlap
between Mr. Niedermayer's disbursements and this Bill
of Costs nor do I have any evidence on what Creston
paid on this Bill of Costs. There is a likelihood that
Creston has already paid the disbursements or a portion
of them that are claimed in this cost review. In these
circumstances I can award nothing for the disbursements.
 With respect to Mr. Temple's accounts, his
services in referring the claimants to Mr. Burke, assisting
Mr. Burke, and negotiating an agreement with Mr. Niedermeyer
on his fees were no doubt very useful to the claimants.
However, the accounts themselves, together with Mr.
Temple's testimony, indicate that most of Mr. Temple's
time was to assist in the Supreme Court petition that
resulted in the first expropriation being declared a
nullity. This board does not have jurisdiction to compensate
fees for work associated with proceedings taken in the
Supreme Court, even where the proceeding arose out of
the expropriation. See Hruschak v. Vernon
(City) (1993), 50 L.C.R. 1 (B.C.S.C.) and Greatbanks
v. Minister of Transportation and Highways (1998),
65 L.C.R. 20 (B.C.E.C.B.). I have already noted that
Mr. Burke has quite properly not billed for his time
in this proceeding. Mr. Temple's time in relation to
the Supreme Court matter can not be claimed either.
 The board has denied accounts from a second
law firm in whole or in part on the grounds that an
authority should not have to pay for duplicative work
arising out of a claimant's preference. Bill's Frontier
Restaurant Ltd. v. Minister of Transportation
and Highways (1996) 58 L.C.R. 204 (B.C.E.C.B.).
However, in this case it does not appear that this is
a factor. But assisting in the settlement of Mr. Niedermayer's
account, while useful to the claimants, is not a service
for which Creston should have to pay.
 After reviewing Mr. Temple's accounts I
reduce the fees to $250. To this sum should be added
the appropriate GST. The amount allowed for each of
the three sets of claimants including GST is $53.50.
 A number of Mr. Temple's disbursements must
be related to the Supreme Court petition since a significant
portion of his services are related to swearing affidavits
and filing documents for the petition. I have no jurisdiction
to order that disbursements related to the Supreme Court
petition be paid by Creston. Such disbursements should
have been claimed in the Bill of Costs for that matter.
One of Mr. Temple's disbursements for payment to a process
server appears to be listed on the draft Bill of Costs
in the Supreme Court proceeding that was in his file.
Most of Mr. Temple's disbursements that are claimed
in this cost review are for more generic items such
as long distance telephone, fax, photocopying and courier.
Substantial sums are listed for these items in the draft
Bill of Costs. As indicated above, I received no evidence
on the degree of overlap between the disbursements billed
by Mr. Temple and claimed in this cost review and the
disbursements listed on the draft Bill of Costs. Finally,
I have no evidence on which disbursements in the draft
Bill of Costs have already been paid. In these circumstances
I can award nothing for Mr. Temples's disbursements
claimed in this cost review.
4.3 Planning bills - first expropriation
4.3.1 Claimants' evidence
 Mr. Niedermeyer retained Ronald Wrigley
of Walker Brown Urban Consultants to review the documentation
and assist him with challenging Creston's plans for
widening Hillside Street. Mr. Wrigley provided an opinion
letter to Mr. Niedermayer and recommended that a transportation
engineer be retained. The transportation engineer, Nick
Finn of BA Consulting Group Ltd. in Calgary, reviewed
the documentation and travelled to Creston to meet with
town employees about the project. He prepared a draft
 Walker Brown rendered one account for $404.05.
The planner's fees totalled $325 for five hours at $65
an hour, and disbursements were $7.62. There was also
some secretarial time and GST. Mr. Wrigley provided
an affidavit that set out the work he had done, his
hourly rates and his curriculum vitae. BA Consulting
Group Ltd rendered two bills totalling $4,774.27. Mr.
Finn gave testimony by telephone. His total time was
33 hours at $105 per hour. There was five hours clerical
at $30 per hour and six hours technical support at $35
per hour. Disbursement totalled $636.84. The three sets
of claimants had each paid one fifth of these three
accounts totalling $5,178.22 or $1,035.64.
4.3.2 Creston's position
 Creston's position was that these disbursements
for the draft reporting from the planner and traffic
engineer should not be paid as they do not fit under
section 45(3). No information from these professionals
was ever used in the compensation hearing. Portions
of the accounts were claimed as disbursements in the
draft Bill of Costs in the Supreme Court proceeding
which implied that the claimants regarded them as part
of the proceedings to have the first expropriation set
 As I have already indicated, in my opinion,
Mr. Niedermayer's decision to obtain this planning and
traffic engineering advice at this stage in the proceedings
was unnecessary and therefore unreasonable. The proper
test for a disbursement is whether the disbursement
was necessary and proper at the time that it was incurred.
Van Daele v. Van Daele (1983), 56 B.C.L.R.
178 (C.A.). In the circumstances, I find that these
disbursements were not necessary at the time that they
were incurred and therefore they are disallowed.
4.4 Communications consultant - Mr. Legg
4.4.1 Claimants' evidence
 Mr. Legg testified at the hearing. He started
attending the meetings of the residents of Hillside
Street that opposed the widening, although he was not
a resident of Hillside Street himself. Both he and Mrs
Ingham agreed that his role was to try to stop the expropriation
of 16.5 feet from the claimants' front yards. As a former
reporter and media representative, he had some ideas
about how to try to generate public pressure to persuade
Creston to consider other options. Mr. Legg testified
that Mr. Ingham told him to keep track of his time and
that they discussed an hourly rate of $90. Mr. Legg
explained that he did not expect to be paid unless there
was some success in stopping Creston from proceeding
with the expropriation and costs were awarded. Mr. Legg
reported that there was a meeting of the group that
he did not attend which approved this fee arrangement.
Mr. Ingham was not called and therefore the only evidence
on the terms of Mr. Legg's contract was from Mr. Legg.
The only term in writing was the following statement
written on all of Mr. Legg's bills - "Payment not
required unless action is successful and costs awarded"
 Mr. Legg wrote a number of letters to the
town, to the town newspaper, to various MLAs and provincial
cabinet members objecting to Creston's plans. These
letters and many of the replies that were received were
in evidence at the hearing. Mr. Legg also suggested
that a lawyer be retained and he appears to have attended
most of the meetings with Donald Niedermayer. Mr. Legg
stated that because Mr. Niedermayer did not live in
Creston he wanted some background information on the
project. Mr. Legg volunteered to provide this information.
Mr. Legg testified that he told the other members of
the group that to the extent that he did the work it
would be cheaper than having it done by a lawyer. Mr.
Legg created an ongoing file that contained a typed
chronology, some information from the provincial government
on municipal highway grants, a copy of the Expropriation
Act, and some appraisal information. Mr. Legg also
kept a clipping file from the local paper with respect
to the project. He reported that he provided copies
of the clippings and the various letters that he wrote
to each of his five sets of clients and the lawyer.
Neither Mr. Niedermayer nor Mrs. Ingham was able to
confirm whether Mr. Legg was instructed to provide a
report and whether he in fact did provide any report
to Mr. Niedermayer.
 Mr. Legg rendered seven bills between January
1991 and August 1991. He claimed just under 219 hours
at $90 per hour for a total of $19,670 plus disbursements
of $288.92. However, to his final bill he added a payment
of $20,000 for the summary report. He testified that
a lawyer had suggested that such a report might cost
$20,000 if the lawyer was to prepare it. However his
accounts show that he had already billed at least 27.5
hours or $2,475 for preparing this report. The total
bill, including interest of 1.5% per month or $3,143,
was $43,101.14. He said that in the fall of 1991 it
appeared that the public relations campaign had run
its course and that from then on it would be a legal
matter. At that time, he explained, it appeared that
the judicial review proceeding of Creston's expropriation
would be successful - hence his rendering of his final
bill and request for payment. He said that he reduced
his bill to $30,000. Each of the three sets of claimants
paid one fifth of this sum or $6,000 in October and
4.2.2 Creston's position
 Since Mr. Legg's role was also to try to
stop the expropriation, Creston submitted that his accounts
were not recoverable under section 45(3). In addition,
there was no precedent for a claimant recovering the
costs of a communications or media consultant. Finally,
it said, the evidence revealed that Mr. Legg had increased
the fees of other professionals by his frequent letters
and enquiries, which were not always of assistance.
It pointed to a letter from Mr. Niedermayer in which
he complained that costs were increased as a result
of having to deal with Mr. Legg's numerous communications.
 The claimants said that they could not have
done the work that Mr. Legg performed. While this may
be true, the issue I have to decide is whether Mr. Legg's
work was necessary and whether the costs charged were
reasonable such that the authority should reimburse
the claimants for these costs.
 One issue is whether there was any legal
requirement for the claimants to pay Mr. Legg's accounts.
In Neill v Minister of Transportation and
Highways (No. 4) (1996), 58 L.C.R. 5 (B.C.C.A.)
the Court considered the question of a fee for a real
estate agent who had a contract with the claimant for
a commission payable on the amount of settlement that
he might achieve on their behalf. In fact, the real
estate agent, although he worked hard over a three year
period, was not able to achieve a settlement and the
matter went to a hearing. The real estate agent billed
the claimants on the basis of his commission calculated
on the compensation awarded. Although the then chair
of the board agreed that the real estate agent's services
were invaluable to the claimants, he rejected reimbursement
of the real estate agent's fee under section . Finch
J.A. upheld the chair's ruling and stated at p. 18:
In my view, the realtor's account does not fall within
the ambit of "other costs" reasonably incurred
because it would not be reasonable to compensate the
Neills for costs that they were not legally obligated
to pay. They were not legally obligated to pay Mr.
Jones' account because his retainer was only for the
purposes of negotiating a settlement. Whether his
assistance proved to be of other value to the Neills
does not go to the question of whether they were obliged
to pay that account.
 Although neither counsel referred to this
case, it appears to me to have some application to the
facts in this case. Mr. Legg also had a contract that
said that no payment was required "unless action
is successful and costs awarded". Mr. Legg requested
payment in the fall of 1991 and was paid in December
1991. At that point there was no successful action although
Mr. Legg testified that it appeared that the judicial
review proceeding would be successful. In March 1992,
there was a consent order in the judicial review proceeding
that declared the expropriation a nullity. Mr. Temple's
file that was in evidence included a draft Bill of Costs
under the Rules of Court for the judicial review procedure,
dated April, 1992. The total legal costs claimed in
this draft Bill of Costs were $1,860. Various disbursements
were included but there was no claim for any invoice
from Mr. Legg. I have no evidence on what was paid either
by agreement or by certification by the Registrar.
 Therefore, at the time that Mr. Legg was
paid, in December 1991, there was no legal obligation
by the claimants that he be paid. Even if I could be
persuaded that the contractual prerequisite for payment
to Mr. Legg - "payment not required unless action
is successful and costs awarded" - had been met
in March 1992, when a consent order was filed declaring
the expropriation a nullity, there are other considerations
which bear upon whether the costs paid by Mr. Legg should
 One of these other considerations is whether
any of Mr. Legg's accounts, as an information or media
consultant can be a necessary and reasonable expenditure
to be claimed from the authority under section 45(3)
or, in the alternative in this case, under sections
34 or 40. In 343146 B.C. Ltd. v. Minister
of Transportation and Highways (1993), 50 L.C.R.
221 (B.C.E.C.B.) the former chair, Jeanne Harvey, disallowed
the fees for the services of an appraiser consultant
on the basis that the consultant's services were redundant
to those which were reasonably expected from counsel
and other experts. To the extent that Mr. Legg charged
for services rendered as a spokesperson for the group
in its dealings with professionals, it appears to me
that the reasoning in 343146 B.C. Ltd. is applicable.
His services as a spokesperson were similarly redundant,
whether or not his efforts in this role were useful.
It is reasonable to expect that, if Mr. Legg had not
been involved, the claimants and the lawyers would have
found another way to communicate with one another that
would have been no less effective.
 To the extent that Mr. Legg's services were
for letter writing to politicians and the media, I believe
that this is a separate role that can be distinguished
from that of a lawyer and is, therefore, not necessarily
redundant. I was referred to no cases where expenses
for anything similar have been paid. In the circumstances
of this case, I do not have to decide on this point.
 Finally there is the issue of reasonableness.
Mr. Legg charged for over 218 hours at $90 an hour for
a total of $19,670 in fees. After apparently charging
them for the time to prepare his "report",
he added a $20,000 surcharge for the report without
any reasonable explanation (I recognize that he reduced
this surcharge to slightly over $10,000 in his final
accounting of $30,000 to the claimants and two other
clients). This apparent discrepancy was not raised by
either party, but it appears to be significant double
billing for which I was given no explanation. In my
review of this "report" it appeared to be
a file containing documents that Mr. Legg had assembled
in an orderly way - a copy of the Expropriation
Act, a copy of a transportation report, a clippings
file from various media sources, correspondence to politicians
and the media and their replies, and some documents
relating to the properties. The only part of the report
that Mr. Legg appears to have contributed himself were
a chronology and the letters he had written to politicians
and the media. Since the report I was given appeared
to be an ongoing file, it is not clear that it was ever
provided to counsel as such - at least I was given no
clear evidence that it was. It is true that much of
the contents of the file were given to Mr. Niedermayer,
as references to the various letters etc. show up in
Mr. Niedermayer's accounts. Mr. Legg testified that
he told the group that he would save them money compared
to a lawyer, that it would be cheaper to have things
done by him rather than a lawyer. However, I note that
his final account of $30,000 was over three times the
size of Mr. Niedermayer's and Mr Temple's accounts combined.
It is also $4,000 more than the total fees charged to
the three sets of claimants for all the professional
services by Gillespie Renkema Burke. While I have no
doubt that Mr. Legg expended many hours with the claimants,
charges of this magnitude for this type of work cannot
 In the circumstances, I disallow Mr. Legg's
5. Second expropriation
5.1 Legal accounts - second expropriation
5.1.1 Claimants' evidence
 Gillespie Renkema Burke rendered two individual
accounts to each set of claimants. Mr. Burke's hourly
rate was agreed and there was no evidence from him at
the hearing. Attached to his accounts to the Inghams
and the Jamiesons were back up documentation for the
time expended and the client ledger for the recording
of disbursements. No such back up documentation was
presented for Mr. Kowalski.
 The first accounts were dated November 30,
1993 and the first work included in these accounts began
in May 1993. The work in relation to the petition for
judicial review was not claimed. The November 30, 1993
accounts were $3,451.06 to the Inghams, $1,809.17 to
the Jamiesons, and $1,468.07 to Mr. Kowalski, including
disbursements and taxes.
 Creston paid $2,698.66 of the November 1993
legal account to the Inghams in March 1994. This sum
was calculated by reducing Mr. Burke's hourly rate from
$185 to $175 and by halving the time indicated for travel.
GST had been adjusted accordingly. This left $752 outstanding.
There was a letter from Mr. Burke sent at the time saying
that less than half his travel time had been included
and that therefore he objected to a further reduction
of 50%. The back up documentation for the initial payments
for costs to the Jamiesons and Mr. Kowalski was not
provided and letters from the Ingham file were included
instead. Thus I was not given any evidence as to what
the advance payment for costs were in the Jamieson and
Mr. Kowalski file. Assuming the amount given for the
advance for costs in each schedule of costs submitted
for this hearing is correct, after deducting the allowance
for appraisal costs, it appears that all but $187 and
$167 respectively of the initial legal bills to the
Jamiesons and Mr. Kowalski were reimbursed.
 The second accounts were dated March 15,
1996, following the hearing. The March 15, 1996 accounts
were $10,857.89 to the Inghams, $8,003.31 to the Jamiesons,
and $7,940.38 to Mr. Kowalski. The total hours billed
by Mr Burke on both accounts to the Inghams were 51.15,
to the Jamiesons 40.75, and to Mr. Kowalski 38.75. An
associate, Mr. Frame, had also billed 16.5 hours to
the Inghams at $100 per hour. Total time billed by both
lawyers was 147 hours for $25,820.25 in fees.
 Total legal accounts for the second expropriation
were $14,308.95 to the Inghams, $9,812.48 to the Jamiesons,
and $9,408.45 to Mr. Kowalski, including disbursements
and taxes. There was evidence that the claimants had
paid these accounts in full. Total accounts for all
three sets of claimants were $33,529.88.
5.1.2 Creston's position
 Creston's position on these accounts was
that it agreed to Mr. Burke's hourly rate and, in general,
to the time that he had expended. Creston stated that
there should be some minor adjustments to the disbursements
charges for photocopies and faxes to make them in line
with what the board has previously allowed as reasonable.
Creston's main objection to the legal accounts was that,
when compared to the net amount awarded, the total legal
accounts to Mr. Burke were unreasonable. Creston referred
me to the factors to be taken into account under section
45(10). This matter was not particularly complex - market
value, for example, had been agreed at the hearing.
With respect to the degree of success, although the
Inghams' and Mr. Kowalski's matters are being reheard
as a result of the Court of Appeal decision and as a
result the final award is not yet known, the amounts
that have been awarded in excess of the advance payment
in the three claims are relatively small.
| Mr. Kowalski
 As can be seen from this chart the net awards
in excess of the advance payment range from $5,159 to
$9,428. After Creston's relatively small reductions
to the Gillespie Renkema Burke accounts with respect
to the photocopying and fax disbursement charges, Creston
then compared the net awards at the compensation hearing
to the legal accounts. During argument at this cost
review Creston deducted from the legal accounts any
amount in excess of the net award for each claimant.
It agreed to reimbursement of legal accounts from Gillespie
Renkema Burke for each claimant up to a maximum of the
net award as follows:
Since the Inghams' account was the greatest in relation
to the amount of the net award in excess of the advance
payment, Creston's position was that it should be reduced
the most. The agreed amount for each claimant assumes
reimbursement of $100 for each claimant to Mr. Neidemayer
and Creston submits that if greater legal costs were
allowed for the first expropriation, these should be
considered along with the costs claimed for the Gillespie
Renkema Burke accounts in applying the test of overall
reasonableness in relation to the amount of the net
award. Creston relied on the case of Kliman
v. Board of School Trustees, District No. 63 (Saanich)
(1992), 48 L.C.R. 204 (B.C.E.C.B.) in which the then
Vice Chair, Cliff Watt Q.C., stated at p. 209 "
...a compensation scheme where costs that frequently
approach or exceed the amount involved is a scheme that
will inevitably attract criticism".
 In considering the factors under section
45(10), after reviewing the board decision, I agree
with Creston that these three cases were not particularly
complex. The initial compensation hearing occupied four
days. It is true that because the expropriations were
partial takings, there were some unusual legal and appraisal
issues raised in determining compensation for reduction
in market value to the remaining land. However, the
market value of the land taken was agreed during the
hearing and there were no business loss claims. The
disturbance damages claimed for various remedial measures
do not appear to have been complex.
 With respect to the degree of success as
measured by the difference between the amount awarded
and the advance payment, it is clear that the net awards
to date in these three claims are relatively small,
ranging from approximately $5,000 to approximately $9,000.
I do not agree, however, with Creston's position of
comparing the legal costs for each set of claimants
to their net award separately and then deducting any
legal costs that exceed the relevant net award. This
literalist application of section 45(10)(b)(ii) results
in Mr. Kowalski obtaining all of his legal costs (after
adjustments for disbursements), the Jamiesons' legal
costs being reduced only 5% (after adjustments for disbursements),
while the Inghams' costs are reduced approximately 65%
(after adjustments for disbursements).
 In the Jamiesons' case, the fact that they
did not cash their advance payment, has resulted in
a larger net award compared to the other two sets of
claimants. I do not think that this choice by the Jamiesons
should entitle them to greater reimbursement of legal
costs merely because their ratio of net award to costs
is greater than if they had accepted the advance payment.
In the Inghams' case, the fact that they received a
larger advance payment for their two lots has resulted
in a correspondingly smaller net award. In addition,
the Inghams' legal costs are approximately 50% higher
then the Jamiesons' or Mr. Kowalski's. Mr. Legg was
no longer involved with the group on a paid basis after
Mr. Burke commenced the compensation claim and there
was evidence that Mr. Ingham acted as spokesperson for
the group. In reviewing the Gillespie Renkema Burke
accounts, it appears to me that the Inghams' accounts
are higher, at least in part, because of their role
as the main representative of the group. There are entries
for telephone calls and letters to the Inghams and almost
no entries for similar items to the other two sets of
claimants. There are also many more entries on the Inghams'
accounts (on the second account there are twice as many
entry dates) than on the accounts of the other two sets
of claimants, and most of these additional items appear
to me to be of general application for all of the claims.
If the other two sets of claimants benefitted to some
degree from the legal accounts that were directed to
the Inghams, the Inghams's larger legal account should
not be used to single them out for a greater deduction.
I prefer to consider the three sets of claimants as
closely linked and make any necessary adjustments to
the Gillespie Renkema Burke accounts in concert.
 I do agree in general with Creston's position
that the Act implies some reasonable relationship between
the costs claimed and the net amount awarded. In a number
of other section 45 decisions, significant reductions
have been made to legal accounts because of the relative
lack of success as set out in section 45(10)(b)(ii),
despite the fact that the board had awarded the claimants
100% of their reasonable costs. See Bill's Frontier
Restaurant Ltd. and McKinnon v. School
District No. 36 (Surrey) (1997), 61 L.C.R. 9 (B.C.E.C.B.).
In this case the three sets of claimants have obtained
net awards to date in the approximate range of $5,000
and $9,000 although these amounts are not conclusive
with respect to the Inghams and Mr. Kowalski, pending
the outcome of the further hearing. While these amounts
are relatively small, they represent a significant increase
over the advance payments (or the attempted advance
payment). Thus the Inghams gained 20% over the $25,200
advance payment, the Jamiesons gained 134% over the
attempted advance payment of $3,850, and Mr. Kowalski
gained 304% over the advance payment of $3,100. This
might be compared with the lack of any improvement on
the advance payment in Cokato Dairy and Stock Farms
Ltd v Fernie (City) (1998), 64 L.C.R. 242 (B.C.E.C.B.),
or the 4% improvement over the advance payment in
Bill's Frontier or the 9% improvement in McKinnon.
Although the total amounts at issue are relatively small
for all three claimants, it can not be said that the
claimants met with no success at the compensation hearing
in comparison to the advance payments that had been
made or offered. I note that the agreements on market
value were not made until the hearing had commenced.
Therefore, while the net amounts awarded were not very
large, it might be said, nonetheless, that the claimants
had some reason to proceed to a compensation hearing.
 The actual amounts in issue are a separate
consideration. The claimants claimed compensation ranging
from $25,000 to $62,000, while the amounts awarded to
date are between $9,000 and $30,000. It is true that
the three relatively small claims were heard together,
and therefore some of the costs have been split between
three claimants. However, it is the case that the total
costs from Gillespie Renkema Burke and Interwest Property
Services (1991) Ltd. are approximately $48,000, which
is the same approximate amount that has been awarded
to the three claimants to date. I agree with the former
vice chair in Kliman that a scheme where the
costs frequently approach the amount involved will inevitably
 Another factor to be considered under section
45(10)(b) is the degree of success taking into account
the determination of the issues. While there were a
number of claims advanced that were not successful,
this matter was appealed and there has been a further
hearing. In the circumstances I will note only a claim
for personal losses for the loss of privacy and increased
noise from the road. The Inghams and Jamiesons claimed
$10,000 each for this head of damages while Mr. Kowalski
claimed $3,400. In Patterson v. British
Columbia (1994), 53 L.C.R. 88 (B.C.E.C.B.), (upheld
later by the British Columbia Court of Appeal, 62 L.C.R.
89), this board held that non-pecuniary personal losses
were not compensable. The board in this case found this
authority applicable and denied the claims for personal
losses for loss of privacy and increased noise from
the road. Only Mr. Kowalski received a nominal sum of
$500 compensation under this heading for his particular
loss as a ham radio operator as a result of the widening
of the road. Given the authority of this earlier decision
by the board, it would seem that these claims for personal
losses for loss of privacy and increased noise by the
three claimants did not enjoy much prospect of success.
 I agree with Creston that the disbursements
for photocopying and faxes should be reduced so that
they are in line with what the board has found to be
reasonable. There is no indication of the rate per page
on the accounts but the back up documentation indicates
that the charge per page is $0.35 per page. Mr. Burke
has previously charged $0.35 in Branscombe v.
Minister of Transportation and Highways (1994),
54 L.C.R. 1 (B.C.E.C.B.). The board has customarily
allowed $0.15 per page as a reasonable amount for photocopying
and on this basis the approximate reduction of the disbursements
for photocopying to the Inghams is $230, to the Jamiesons
is $213, and to Mr. Kowalski is $210. With respect to
the disbursements for faxes, the back up documentation
indicates that a flat rate charge of $5.00 per fax was
made, with no indication of the number of pages or whether
the fax was incoming or outgoing. Following the decision
in Greatbanks I allow an average of 4 pages per fax
at $0.35 per page instead of a $5.00 flat charge per
fax. Finally, I disallow the $15.00 file opening charge
for each claimant since I regard such a charge that
is not actually expended as part of overhead.
 The legal fees billed by Gillespie Renkema
Burke to the three sets of claimants total $25,820.25,
while the total costs claimed including disbursements
and taxes are $33,529.88. I have also allowed a total
of $1,747.20 in legal fees with respect to accounts
from Robertson, Niedermayer & Miles and Mr. Temple.
After considering all the relevant factors, including
the possibility that two of the claimants may have somewhat
greater awards in the end, I allow the Gillespie Renkema
Burke accounts as follows: to the Inghams $11,000, to
the Jamiesons $7,500, and to Mr. Kowalski $7,200 including
disbursements and taxes. This amount takes into account
the reduction in disbursements detailed above, and a
similar reduction in fees to each of the three sets
of claimants of between 20% and 25% with the appropriate
adjustments in GST and PST.
5.2 Appraisal accounts - second expropriation
5.2.1 Claimants' evidence
 Danny Grant of Interwest Property Services
(1991) Ltd. gave appraisal evidence for the claimants.
Interwest rendered two accounts for work done for five
neighbouring clients including the three sets of claimants.
One account was a joint account and was dated March
8, 1994. This account billed for 91 hours of professional
services for a total of $5,140, plus disbursements and
taxes for a final total of $5,698.31. In this account
Mr. Grant billed for 12 hours at $165 per hour. Each
set of claimants claimed one fifth of this account or
 Creston paid $3,110.83 of this account in
April 1994 or $1,036.94 for each set of claimants. This
was three fifths of the total bill after reducing Mr.
Grant's rate from $165 to $125 and adjusting the GST
accordingly. This left $102.72 outstanding on this account
for each of the three sets of claimants.
 Interwest rendered a second account to each
set of claimants on March 11, 1996. In the later accounts
each set of claimants was billed for 28.5 hours of professional
services or $2,709.15, plus one third of the common
disbursements. Mr. Grant billed for 11 hours at $170
per hour on each account. There was back up documentation
provided for this account detailing who had done the
work, their hourly rate, and the time spent. There was
also the ongoing accounting for the various disbursements,
together with the division of the common costs into
three. The disbursements to the three sets of claimants
varied on one item so that the final account was $3,681.24
for the Inghams and $3,724.04 each for the Jamiesons
and Mr. Kowalski. Thus the Inghams' total claim for
appraisal costs was $4,820.90 and the Jamiesons' and
Mr. Kowalski's was $4,863.70. The total appraisal accounts
to the three claimants are $14,548.30, including a total
of 177 hours of professional services.
 Mr. Grant gave testimony at the cost hearing.
He stated that he had been in practice for 31 years
and that he specialized in partial acquisitions. He
testified that the hourly rates of the people in his
firm were reviewed every December in relation to other
appraisers and that for the last 10 years he had tried
to keep his hourly rate at the top of the range for
senior appraisers in the province.
5.2.2 Creston's position
 At the conclusion of the hearing Creston
agreed to reimbursement of the appraiser's accounts
with the exception of Mr. Grant's hourly rate. Creston
submitted that Mr. Grant's hourly rates of $165 and
$170 were too high. While Mr. Grant has extensive experience,
he is a member of SR/WA (statutory rights of way association)
but he is not a member of the Appraisal Institute of
Canada. Creston referred us to Ferancik v.
Langley (Township), (1997), 62 L.C.R. 291 (B.C.E.C.B.),
where the then Vice Chair, Fiona St. Clair, at p. 311
stated that an appraiser's lack of formal AACI designation
was one factor in deciding that his hourly rate was
too high. Creston agreed to Mr. Grant's time at $125
an hour. Creston also submitted that global reasonableness
applied to appraiser's accounts and referred me to
Tidmarsh v. Comox-Strathcona (Regional District)
(1994), 54 L.C.R. 13 (B.C.E.C.B.) where, primarily on
the basis of the small amount in issue, there was a
global reduction of both the appraisal account and the
legal accounts. When Mr. Grant's time was allowed at
$125 an hour and GST was adjusted accordingly, Creston
agreed that the Inghams should be reimbursed $4,188.53
in total for appraisal costs, and that the Jamiesons
and Mr. Kowalski should each be reimbursed $4,231.33.
These sums included the advance payments already received.
 Mr. Grant admitted that his hourly rate
is set each year to be at par with the most senior appraisers
in the province. While it is certainly a high hourly
rate, I do not accept Creston's position on the appraisal
accounts of merely substituting $125 for Mr. Grant's
hourly rate of $165 or $170. The decision in Bill's
Frontier makes clear that my task in this review
is to determine overall reasonableness.
 One of the statutory factors to be considered
is the manner in which the appraisal evidence was prepared.
In its decision, the board indicates that it relied
on Mr. Grant's reports to obtain the market value of
the properties before the taking. Because there has
been an appeal from this decision, and a further hearing,
I must be careful in accepting all of the board's comments
in its initial decision as final.
 While each cost assessment turns on its
own particular facts, it is helpful to consider other
board decisions that have some similarities. In
Bill's Frontier the total appraisal accounts allowed
in a case involving a nine day hearing for a partial
taking were in the order of $10,800. In Ferancik
the appraisal accounts allowed after a four day hearing
for a total taking of unimproved land was $12,000. In
this case, although there were three reports prepared,
there was a significant degree of overlap between them.
Mr. Grant testified that the main difficulties in this
case arose from the distance that Creston was from his
office and the resulting problems in acquiring information
since his office did not have much information on Creston
in its data bank. While this problem does justify some
extra time, the issues were not particularly complex.
 After considering the various factors, I
allow the Interwest Property Services (1991) Ltd. accounts
at $4,200 to the Inghams and $4,243 each to the Jamiesons
and Mr. Kowalski including disbursements and GST. This
is almost identical to the amount agreed to by Creston
and is equivalent to a similar reduction in fees to
each of the three sets of claimants of approximately
15% with the resultant adjustment in GST.
6. Witness fees
 Each set of claimants also claimed witness
fees incurred at the compensation hearing. Ken Yaeger
was a Cranbrook appraiser who had been retained by Creston
to give initial opinions of value for the partial takings.
Creston did not rely on Mr. Yaeger's opinion as they
had obtained a second appraisal from someone else. The
claimants summoned Mr. Yaeger as a witness at the hearing
and he submitted a bill for his time for $160.50. At
the conclusion of the hearing Creston agreed to this
bill and therefore it is allowed.
 George LeClaire was a contractor in Creston
who had provided estimates for work on the Jamiesons'
and the Kowalski's residences that would ameliorate
the impact of the widened road. He also testified at
the compensation hearing. He submitted an account for
$107 for travelling expenses to attend the hearing.
At the conclusion of the hearing Creston agreed to this
bill. However, this bill was also included as a disbursement
in the Gillespie Renkema Burke accounts to the Jamiesons
and to Mr. Kowalski and therefore it is not allowed
separately as that would be double recovery.
 Finally Garry Heasman was a bricklayer in
Creston who rebuilt the Ingham's chimney. He testified
at the compensation hearing and submitted an account
for $125 for his travelling expenses. At the conclusion
of the hearing Creston agreed to $107 of this bill,
at the same rate as Mr. LeClaire. I allow $107 at the
same amount as Mr. LeClaire.
 The Inghams and Jamiesons claimed their
own travel costs from Creston to Cranbrook to attend
the compensation hearing of $250 and $125 respectively.
Mr. Kowalski who testified by telephone from his home
in Calgary claimed $100 in telephone costs. Creston
submitted that there was no evidence for any of these
expenses and thus they should be rejected. Photocopies
at the hearing in the sum of $7.13 were also claimed
and Creston agreed to this cost.
 Section 27(2) of the Act provides:
(2) If practicable and convenient, the board must
hold its hearings in the area where the expropriated
land is located, unless all parties to a proceeding
agree to hold the hearing at some other location.
In this case it was practical to hold the hearing in
Cranbrook rather than in Creston where the properties
were located. This required the claimants to travel
to Cranbrook for the hearing. While there was no evidence
in support of the claimants' travelling costs, I am
entitled to take notice that Creston to Cranbrook is
just over 100 km by road. In the circumstances the travelling
costs of the Inghams at $250 and the Jamiesons at $125
are reasonable and I allow these sums. Mr. Kowalski
is also entitled to costs that he incurred in talking
to counsel and testifying at the hearing from Calgary.
There was no evidence offered as to these costs. Nevertheless,
in the circumstances I am prepared to allow reimbursement
of the $100 claimed for telephone calls.
 I have allowed the following accounts including
GST and PST where applicable.
| Legal Costs
|| $ 250.00
|| $ 125.00
|| $ 100.00
8.1 Claimants' position
 Each of the three sets of claimants claimed
interest. All three sets of claimants claim a total
of $294.18 in interest on the outstanding amount of
the first Gillespie Renkema Burke accounts dated November
1993 and the first Interwest Property Services (1991)
Ltd. account dated March 1994 from when the advance
payments on these accounts were made in March and April
1994 respectively, until April 1996. There was no evidence
of any contractual agreement to pay interest between
Gillespie Renkema Burke and the claimants but each of
the three accounts stated that interest will be charged
at a rate of 1 1/2% per month (18% per annum) on all
amounts not paid within 30 days of billing date. Interwest
billed the claimants collectively and again there was
no evidence of any contractual agreement to pay interest.
The accounts had a similar provision for interest charges
on overdue accounts.
 Each set of claimants also claims interest
under section 46 on the whole of the outstanding bill
from May 1996 when the second accounts and summary schedule
of costs were presented to Creston until the costs are
8.2 Creston's position
 Creston's position was that there was no
evidence of obligation to pay interest in that no retainer
agreements between the claimants and the relevant professionals
had been filed as exhibits.
 I have no evidence of any reasons for Creston's
non payment of any amount on the second accounts and
schedule of costs that was submitted to them in May
1996 until the review of costs held in June 1999. It
appeared that prior to the review, Creston had agreed
to Mr. Burke's hourly rate but indicated that it objected
under section 45(10) to his total bill in relation to
the amounts awarded following the first hearing. During
the review itself, Creston agreed to some of the witness
fees and other minor matters. During argument it conceded
Interwest's account at a reduced hourly rate for Mr.
 First, there appears to be a problem with
the interest calculations advanced for the outstanding
balances arising out of the initial accounts from Gillespie
Renkema Burke and Interwest Property Services (1991)
Ltd. Gillespie Renkema Burke billed the three sets of
clients separately and each account was for a different
amount ranging from $1,468.07 for Mr. Kowalski to $3,451.06
for the Inghams. Interest was calculated on the outstanding
balance of the Ingham account ($752.40) from the date
of advance payment until April 1996. This interest calculation
totalled $141.50. Although it appears that the outstanding
balances for the Jamiesons and Mr. Kowalski were only
$187 and $167 respectively, the same amounts for interest,
namely $141.50, were claimed for these two claimants
as for the Inghams. With respect to the Interwest account
there was only $102.72 outstanding for each of the three
sets of claimants but the interest claimed appears to
be calculated on one fifth of $2,587 or $517.40. In
any event, the initial accounts from Gillespie Renkema
Burke and Interwest Property Services (1991) Ltd. were
reimbursed in a timely way but for the outstanding balances.
 More generally, awards of interest on professional
accounts are discretionary and the mandatory element
contained in section 46 of the Act does not apply. The
board has awarded interest on costs at a section 45
review with respect to evidence about the claimant's
contractual obligations to pay interest on a particular
professional's account, although in some cases interest
has been awarded in the absence of clear evidence of
a written retainer agreement. See Tidmarsh v.
Comox-Strathcona (Regional District) (1995),
55 L.C.R. 81 (B.C.S.C.); Roadmaster Auto Centre
Ltd. v. Burnaby (City) (1996), 58 L.C.R.
305 (B.C.E.C.B.) and El and El Investments Ltd.
v. Board of School Trustees of School District No.
36 (Surrey) (No. 3) (1996), 59 L.C.R. 200 (B.C.E.C.B.).
In this case there were statements on all of the accounts
with respect to interest being paid on overdue accounts,
including the Interwest accounts. I note that one of
the Interwest accounts that was filed as an exhibit
appeared to be a file copy from Interwest's files and
was not on letterhead. As a result it lacked the statement
with respect to interest, but I am satisfied that the
statement was present on the original account.
 I would note that in this case there was
evidence that the claimants paid all the accounts that
were presented to them. While I do not have the evidence
as to when the Gillespie Renkema Burke and Interwest
Property Services (1991) Ltd. accounts were paid, the
other accounts appear to have been paid relatively promptly
and I can infer from this that these bills were also
paid relatively promptly. If a claimant promptly pays
the account then the professional is owed no interest
on his account and it is the claimant himself who is
out the money until the authority eventually reimburses
him. It seems to me inequitable to deprive the claimants
from interest when they are out of pocket directly rather
than under the construct that they are obligated to
pay interest on an overdue professional's account. The
provisions of the Tariff of Costs Regulation,
B.C. Reg 189/99 ("the Tariff"), with respect
to interest on legal or real estate appraisal costs
do not apply to this review. I award the claimants interest
on the outstanding accounts from Gillespie Renkema Burke
and Interwest Property Services (1991) Ltd. that have
been allowed from May 31, 1996, until paid.
 As to the rate of interest, the board has
not always accepted the rate prescribed by the professional
in his or her agreement with the client. See Roadmaster
Auto Centre Ltd. Neither does the statutory rate
set out in section 46 apply. See El and El Investments
Ltd. In my opinion simple interest at 10% per year
from May 31, 1996 is reasonable.
9. Costs of this hearing
 The claimants have claimed the costs of
this review. There is no question that the cost review
was necessary since no payment on the second accounts
from Gillespie Renkema Burke and Interwest Property
Services (1991) Ltd. had been made by Creston. It is
my understanding that there was no agreement to paying
any particular sum on these accounts prior to argument
at the conclusion of the cost review. While the degree
of success on the costs for the first expropriation
was not great, the circumstances for this claim were
somewhat unusual. The claimants have enjoyed substantial
success with respect to reimbursement of costs for the
second expropriation. No evidence was provided to me
as to the costs that should be awarded. In the circumstances
the claimants are entitled to their actual reasonable
costs for the cost review in an amount to be agreed
upon or, failing agreement, to be determined by the
chair. The Tariff does not apply to these costs.
Sharon I. Walls