June 30, 1997, E.C.B. Control No. 02/92/143 (62 L.C.R. 3)


Between: Marisa Lucia Hertel
And: Her Majesty the Queen in Right of the Province of British Columbia as Represented by the Minister of Transportation and Highways
Before: Susan E. Ross, Presiding Member
David J. Clark, AACI, Board Member
Suzanne K. Wiltshire, Board Member
Appearances: J. Bruce Melville, for the Claimant
Alan V. W. Hincks, for the Respondent




In 1988 the Ministry of Transportation and Highways (the "Ministry") commenced a project to improve Highway 97, north of Summerland, British Columbia. This case concerns a 30 square metre (0.0033 hectare) estate in fee simple which the Ministry acquired as part of that project. The acquisition was pursuant to an agreement under s. 3 of the Expropriation Act, R.S.B.C. 1996, c. 125 (the "Act")1signed by the claimant, Marisa Hertel, on November 28, 1988. The property acquired consisted of a wedge bordering the north east corner of the intersection of Highway 97 and Steuart Street, some 1.5 kilometres north of Summerland and was part of a larger parcel (Lot 7, District Lot 472, Osoyoos Division Yale District, Plan 148, except Plan 41218), also owned by the claimant, upon which she and her husband, Ted Hertel, operated the Bonaterra fruitstand and related operations (an orchard and orchard tours). Lot 7 was rectangular and comprised 4.05 hectares (10 acres) before being reduced by the Ministry's acquisition of the wedge.

1 All references are to the 1996 consolidation of the Expropriation Act.


Before the Ministry acquired the wedge, it was used as part of the direct highway access to the fruitstand and patron parking, though Lot 7 was also accessible off Steuart Road. Initially, the Ministry did not believe that its project would change the elevation of the highway and so agreed to continue to provide highway access to the claimant's property. As the project progressed, however, it became apparent in late 1990 or early 1991 that the highway elevation would be rising, effectively leaving Lot 7 in a hole and making it impossible for direct highway access to continue. As a result, the parties entered into a second s. 3 agreement dated July 22, 1991, which acknowledged that the Ministry would not be able to reconstruct highway access to the claimant's property, confirmed the original 1988 payment of $723 for the wedge and the possession date of December 5, 1988, and provided for an additional payment of $115,000 in satisfaction of the Ministry's advance payment obligations under s. 20 of the Act.

The compensation hearing took 10 days. The parties agree that the value of the 30 square metre wedge was $723 and that this was paid under the first s. 3 agreement. The compensation claims remaining for determination are: $305,000 for loss of value to the remaining property; $232,000 for disturbance damages in the form of business and personal losses said to be caused from the interruption and eventual cessation of operations at the fruitstand; and, unquantified claims for the value of owner's time spent dealing with the Ministry over its acquisition and the loss of highway access and for other miscellaneous losses.

The main witnesses for the claimant were Mrs. Hertel and her husband and their experts, Gordon D. Frampton (real estate appraisal), Lorne J. Pellegrin (business valuation) and R. Bruce McTavish (agricultural economics). The main witnesses for the Ministry were experts, Danny Grant (real estate appraisal, agricultural business management and agricultural practice), Donald M. Spence (business valuation) and Daniel E. Schroeter (agricultural economics).



The Hertels purchased Lot 7 in 1981 with Mrs. Hertel's parents. Mr. and Mrs. Hertel were then 48 and 43 years of age, respectively. On the property was an 8.5 acre (3.44 hectare) orchard with low density fruit trees, a 1,280 square foot residence built in 1945, a 480 square foot picker's cabin built around 1935, a fruitstand built in 1973 (added to in 1982 and 1988 for a total size of 2,590 square feet), and a 450 square foot greenhouse.

Mr. Hertel, a petroleum engineer, worked overseas for much of his professional life. The Hertels' plan for Lot 7 was for her parents to live on the property and operate and improve the fruitstand business. Then, when Mr. Hertel retired from the petroleum business, he and his wife would move into the residence and together profitably operate the orchard/fruitstand business until 1994 when they would settle into a secure and comfortable retirement.

The Hertels did make some improvements to the fruitstand after its purchase, and Mrs. Hertel's parents did live on Lot 7 and operate the fruitstand but only until 1984 when her father became seriously ill. At that time, the Hertels were in Indonesia where they had lived since 1983. They responded by arranging to lease out the operation of the fruitstand. This went on for three years with varying degrees of success until Mr. Hertel retired from the petroleum business in late 1987. He and his wife then returned from overseas prepared to implement their dream of continuing to improve the fruitstand by adding to the fruitstand structure, by selectively replanting the orchard to provide varied fruit for sale at the stand, and by offering orchard tours and an expanded product line, including higher profit margin items such as fruit leathers and fruit shake drinks.

Though Lot 7 was 4.05 hectares (10 acres) in size, Mr. Hertel testified that only 3.44 hectares (8.5 acres) were plantable, and in fact planted with fruit, when they purchased the property. The plantable acreage was divided into an upper bench to the south and west and a smaller, lower bench in the north east corner of the property. The lower bench was less desirable because it had been subject to frost in the past.

Neither of the Hertels had prior training or experience as orchardists, in retail or commercial fruit sales, or in what has come to be known as agri-tourism. Nor was there evidence that they took serious or in depth professional advice about their strategies for the orchard and fruitstand. Nonetheless, in 1988 and 1989, Mr. Hertel removed and replanted approximately half of the orchard. Rather than selecting amounts and types suitable for marketing to commercial fruit packing houses, he planted varied tree fruits to sell at the fruitstand and to attract tourists for orchard tours. As a result, the replanted orchard on Lot 7 has plantings that are not easily, or necessarily profitably, marketable outside their intended orchard tour "full service" fruitstand niche, a niche which the Hertels regarded as the leading edge in agri-tourism. The removal process continued after 1990, with Mr. Hertel taking out a further .88 acres (0.36 hectares) of Red Delicious, Golden Delicious and Spartan winter apples from the upper bench, and a further 2.75 acres (1.11 hectares) of winter and summer apples and Anjou pears from the lower bench.

In the basic division of labour before the fruitstand closed, Mrs. Hertel was responsible for the fruitstand and Mr. Hertel was responsible for the orchard. They also had full time staff working in the fruitstand during the summer season, and casual assistance in the orchard. After 1990, Mrs. Hertel had to redirect her energies to help her husband in the orchard, yet she also attempted to maintain a limited retail operation at the fruitstand which, as she candidly stated in cross examination, is now just "a very fancy building for backyard sales".

On the valuation date of July 22, 1991, the Hertels were living in the house on Lot 7 and operating the business. Indeed, at the time of the compensation hearing, the Hertels continued to live there and operate the orchard, and also continued to rent out the picker's cabin to an individual who paid modest rent and worked in the orchard from time to time.



The issues were defined by the general positions of the parties.

The claimant maintains that the fruitstand was a profitable operation the viability of which was destroyed by the loss of highway access and visibility. She also asserts that a termination allowance is payable under s. 34 (4) of the Act because special characteristics of the property and business (such as its unique mix of tree fruit plantings to supply the fruitstand with varied product and to accommodate orchard tours, the proximity of the house to the fruitstand, and the Hertels' ages and retirement plans) made it impossible to relocate the business to an alternate location.

The Ministry, in contrast, says that the fruitstand was never a success, in part because of its location and less than top grade size and appearance, and in part because of the Hertels' poor management of sales, marketing and the plantings in the orchard. The Ministry also says that the fruitstand was capable of relocation and therefore the Ministry should not be accountable for projected business losses associated with the Hertels' refusal to relocate. According to the Ministry, the Hertels purchased Lot 7 at the top of the market in 1981, and their reluctance to sell it at a loss was the real reason they did not relocate their business, even after it became apparent that the Ministry was not going to be able to restore highway access. The Ministry maintains that the reduction in value of the remaining land was only $115,000, the amount of its s. 20 advance payment. It is also prepared to acknowledge a small compensable business loss while the fruitstand continued to operate in 1989 and 1990 ($11,000), but stands firm that no terminal loss under s. 34 (4) or other loss is recoverable.

At the outset of the compensation hearing, it also appeared that the Ministry would argue that because Mrs. Hertel alone was the registered owner of the property, she alone was an "owner" under the Act and she alone could advance a compensation claim. This had implications for the disturbance damages claim because though both husband and wife had operated the business, its income and losses had been attributed entirely to Mr. Hertel for tax purposes and he, according to the Ministry, was not an "owner". It became unnecessary to decide whether Mr. Hertel could be joined as co-claimant with his wife, however, when the Ministry decided to agree that as a matter of law any compensable loss or injury to the business was recoverable by Mrs. Hertel because it had been carried on as a partnership. The board granted the claimant's application to amend her compensation claim to describe the business as a partnership of Mr. and Mrs. Hertel. Mrs. Hertel remains the sole claimant, but she has capacity to claim full recovery under all the heads of compensation advanced.

The following questions remain for our resolution:

(a) What comparables and adjustments apply to the determination of the before value of the remaining land?

(b) Was high density replanting a viable after use of the remaining land?

(c) What comparables and adjustments apply to the determination of the after value of the remaining land?

(d) Is compensation payable for a terminal loss under s. 34 (4) of the Act?

(e) What compensation is payable for losses under s. 34 (1) (a) or 40 (1) (b) of the Act?

(f) Is compensation payable for owners' time and other miscellaneous losses?



4.1 Highest and Best Use

The same property zoning and regulatory designations have existed throughout. Lot 7 is located in the Agricultural Land Reserve. It is zoned A2-Agriculture and designated Farmland on the Official Community Plan. A2-Agriculture zoning permits a variety of uses including orchards, home occupation in a single dwelling, auxiliary dwellings to accommodate farm help, and seasonal fruit and vegetable stands.

The experts agree that the Hertels' combined agricultural and residential use of Lot 7 conformed with the allowable uses for its zoning and was also its highest and best use before the taking. They also agree that, while a combined agricultural and residential use remains the highest and best use, Lot 7 is no longer a viable location for a fruitstand because of the loss of direct access and visibility to the highway.

Despite this agreement that the Hertels were using the property in accordance with its highest and best use, the parties disagree on a more precise characterization of that use. The claimant characterizes the before use as a "full service commercial fruitstand/orchard tour operation ... with direct access to the highway". These words are taken out of the report of the claimant's real estate expert, Frampton, (pp. 19-20), but reference to the report itself puts them in better context. The report states that by 1990, "the property had been fully developed as a full service commercial fruitstand/orchard tour operation, but in fact had never operated as such, due to the effects of the reconstruction of the highway."

The Ministry, on the other hand, portrays the Hertels' operation as, at best, a cottage industry style, small scale, retail operation. Because of its zoning and location limitations, the Ministry objects to any suggestion that Lot 7 was, or could have become, a "full service" retail or commercial use site.

The parties' different visions of the Hertels' capabilities and of Lot 7's viability for a fruitstand business are reflected in their experts' choices of comparables for the direct comparison approach to determining value.

4.2 Before Value -- Evidence

Frampton uses only the direct comparison approach in his valuation of Lot 7. He says he did not use a cost approach because vacant land sales reflecting the contributory commercial value of the property for a retail fruitstand operation were not available. He concludes that the before value was $385,000, consisting of $240,000 for land and $145,000 for improvements.

Grant, the Ministry's real estate expert, uses both the direct comparison and cost approaches. He concludes that the before value was $265,000 ($266,000 by the cost approach and $250,000 by the direct comparison approach). This value does not include any equipment and is said to reflect the value of the property "as a going concern".

Grant has considered some 15 other properties and 4 lease comparables, including both of the comparables that ended up being favoured by Frampton. The two sales Grant has decided are most relevant, Redies and Nunes, were residentially improved orchards of similar size and identical zoning to Lot 7, and located in the same immediate vicinity as Lot 7 north of Summerland on the east side of the highway, with highway frontage and sale dates before December, 1991. Neither the Redies nor the Nunes properties had fruitstands, but Grant concludes this could be adjusted for because the barriers to constructing fruitstands on those properties were minor.

The Redies property, together with orchard equipment, was optioned in November, 1988 for $200,000 when it was 9.46 acres, then the sale completed in March, 1990 for $177,500 when it was 8.47 acres. The reduced acreage arose because this property was also affected by the Ministry's improvement of Highway 97. Grant considers the size, topography and soils of the Redies and Hertel properties to be equal, and the location and frost factors on the Redies property to be superior. He has adjusted the $200,000 figure as follows for a value estimate of $262,500: equipment -- $15,000; house + $20,000; packing house and garage versus fruitstand + $40,000; irrigation systems + $10,000; pavement + $7,500.

The Nunes property was 8.81 acres and sold in June 1991 for $200,000. It was also affected by the improvement of Highway 97 in that the Nunes moved their house further to the rear of the property and remodeled it to accommodate the Ministry's acquisition of a strip of land alongside the highway. Grant has adjusted the $200,000 figure as follows for a value estimate of $264,000: equipment -- $10,000; pavement and buildings other than house + $60,000; size + $14,000.

Frampton rejects the comparables chosen by Grant because they did not have fruitstands on them. He restricts himself to investigating existing fruitstand locations and decides that sales of the Trout Creek and No. 1 fruitstands are the best comparables. He ultimately chooses Trout Creek as the best indication of value because it was located in the same municipality as Lot 7, whereas No. 1 was not.

The Trout Creek fruitstand had the same zoning as Lot 7, was located on a 4.4 acre lot cultivated in 50% tree fruits and 50% ground crops, and included a 1,700 square foot fruitstand, a 1,600 square foot house and two greenhouses. It was located south of Summerland on the east side of the highway and sold twice, first in February 1992 for $290,000, then again in March 1994 for $315,000. The date for the latter sale is contested by Grant who says that the sale date was actually March 1993, with the transfer not being executed until March 1994. Frampton has adjusted the $290,000 sale figure as follows for a value estimate of $384,570: time -- $7,250; size + $72,670; improvements + $29,150.

The No. 1 fruitstand sold in June 1993 for $271,000. It was on a 4.01 acre lot which was split zoned 3.5 acres, A-R (Agricultural Residential) and .51 acres, C-2 (Commercial - A.L.R.), and cultivated in 70% tree fruits and 30% ground crops. It was located on the east side of Highway 97 at Kaleden, and included a 1,680 square foot fruitstand and a 968 square foot double wide mobile home on a concrete basement. Frampton has adjusted the $271,000 sale figure as follows for a value estimate of $374,045: time -- $23,305; size + $77,740; improvements + $48,610.

Frampton makes his adjustments on the following bases. He derives a time adjustment factor of 4.3% per annum from the 8.6% increase in the Trout Creek price between its February 1992 sale and its recorded March 1994 sale. His size adjustment refers to the Redies and Nunes sales. Frampton considers their residual land values to be the best evidence of the value of the balance of the Hertel acreage. To arrive at a residual land value, Frampton deducts in each case his estimate of the value of the improvements, and with respect to the Redies sale also adjusts for time over 32 months utilizing a 5% per annum factor. His resulting residual land values are $10,300 and $13,000 per acre, respectively. Frampton uses the latter, the Nunes sale, as more reliable since no time adjustment was necessary. For the improvements, Frampton uses a $30 per square foot depreciated value for the residence and a $25 per square foot depreciated value for the fruitstand, which he identifies as the adjustments used by Grant in his appraisal of Lot 7.

The Ministry is critical of Frampton's comparables because, unlike Lot 7, Trout Creek and No. 1 were "full service" fruitstands advertised as having profitable earning records. Furthermore, Frampton makes no adjustments for the following facts: the Trout Creek fruitstand was almost brand new and its sale included equipment and an additional greenhouse; the No. 1 fruitstand was split zoned Commercial, which permitted a wider range of development than was permissible for Lot 7; and the residence on the No. 1 property had a panoramic view of Skaha Lake.

The Ministry is also critical of Frampton's adjustments for time and improvements. Both the sale and the resale of the Trout Creek fruitstand occurred long after July 22, 1991. Frampton's time adjustment is incorrectly based on a resale date of March 1994, given Grant's evidence that the sale transaction occurred a year earlier in March 1993 but was not registered until 1994. Frampton uses the per square foot improvement values derived by Grant for Lot 7 without regard to their applicability to his comparables; and, the $25 per square foot rate used for the fruitstand, while stated by Frampton to be a depreciated rate, is not. Frampton includes the storage area in his calculations for the claimant's fruitstand, but not for his comparables, and also fails to account in any way for functional differences among the improvements.

Finally, while considering the $13,000 per acre value used by Frampton to adjust for size differences between his comparables and Lot 7 to be a little high, the Ministry is most critical of the overall result of Frampton's approach. Taking his before value of $385,000 and adjusting it with his per square foot improvement rates, yields an improvement value of $120,000 and thus a $26,500 per acre residual land value for the Hertel property. The Ministry argues that no comparable sale at or near the valuation date commanded an amount close to this price, and that even Frampton's preferred Trout Creek comparable, after adjustments for location and size but before adjustments for time, equipment included and goodwill, indicated a comparative land residual value of less than $16,000 per acre for Lot 7.

4.3 Before Value -- Analysis

It stands to reason, and is evident from the photographs of various fruitstand operations included in the expert reports, that not all fruitstands are created equal in their physical attributes. But this confronts the issue from the viewpoint of the improvements and not the land itself. In terms of the value of the land, Frampton's rejection of Grant's comparables because they did not have fruitstands on them and his restriction of his investigation to comparables with existing fruitstands, is untenable. Provided the land could be developed as a fruitstand/orchard tour business, its improvements in this instance are not relevant to the determination of land value. The board accepts Grant's undisputed evidence that the barriers, if any, to constructing fruitstands on his two preferred comparables (Nunes and Redies) were minor and could be overcome.

This leaves us to determine which comparables are best in relation to Lot 7. We have decided that the Nunes and Redies comparables relied on by Grant are the best. Our preference rests on three bases: both have transaction dates close to the valuation date; they are located close to the claimant's property; and, they are comparable in size to it. The result is greater reliability because minimal or no adjustment is required for these factors. In contrast, both of Frampton's chosen comparables, the Trout Creek and No. 1 fruitstands, are approximately half the size of Lot 7 and therefore require considerable size adjustment. We also find persuasive the Ministry's criticisms of how Frampton made these adjustments and the resulting per acre value. The evidence at the compensation hearing as to the transaction date for the Trout Creek comparable also casts considerable doubt as to the accuracy of Frampton's time adjustment for this transaction. Both appraisers use the same per square foot values in adjusting for improvements: namely, Grant's values for the Hertel improvements. However, Frampton uses Grant's values without further adjustment for the age and condition of Frampton's comparables, raising further concerns.

The board finds that Grant's adjustments to the Nunes and Redies sale values are reasonable, and notes that the claimant did not challenge these adjustments. The estimated value Grant derives from these two comparables and their adjustments results in a before value range for Lot 7 of between $262,500 and $264,000. Using the cost approach, Grant derives a value of $266,000, based on a land value of $12,000 per acre and a total improvements value of $146,000. He concludes that the value of the remainder Lot 7 as a going concern (excluding equipment) prior to the taking was $264,900. The board prefers this value to Frampton's for the reasons noted above and accepts $264,900 as the before value of the remaining Hertel property.

4.4 After Value -- Evidence

There are two main differences between the experts' approaches to an after valuation. Firstly, Frampton values Lot 7 as vacant orchard land without attributing any value to the improvements (even though the Hertels continued to live in the residence, make back yard fruit sales and rent out the picker's cabin), whereas Grant attributes residual value to the residence and most of the outbuildings. Secondly, the Ministry argues for the viability of a high density replant of the orchard in varieties suitable for sale to commercial packing houses, whereas the claimant says that the best that could be hoped for would be direct roadside bulk fruit sales.

The result for Frampton is a rounded after value of $80,000. This is based on a vacant agricultural land calculation at a rate of $8,000 per acre which, when subtracted from his before value of $385,000, gives a loss in property value of $305,000, the amount claimed by Mrs. Hertel. Frampton derives his $8,000 per acre rate from an examination of three of his vacant agricultural land comparables (Nos. 3, 4 and 5) which had per acre sale rates of $9,465, $7,590 and $10,350, respectively. In Frampton's view, No. 3 and No. 4 illustrate the upper and lower limit of an excellent production orchard property versus a marginal property with trees removed in favour of alternative agricultural use, and the mixed plantings on Lot 7 point to a mid-value between those two comparables of $8,000 per acre.

Even though the Ministry argues that a high density replant was feasible for Lot 7, Grant adopts a vacant agricultural land after value rate of only $9,000 per acre ($90,000). He derives this from his $12,000 per acre before land value less 25%. To this he adds values for improvements: $43,400 for the residence based on a 30% discount from its before value, and $19,000 for the greenhouse and outbuildings, other than the fruitstand which Grant considers to have lost all utility. The result for Grant is a rounded after value of $150,000 which, when subtracted from his before value, gives a loss in property value of $115,000, the amount of the Ministry's advance payment under s. 20 of the Act.

4.5 High Density Replant -- Evidence

There is no issue that Lot 7 was no longer a viable fruitstand location after the Ministry's acquisition of the wedge and the loss of direct access to Highway 97. Where the experts differ is on whether a high density replant was a viable alternative use for the property.

McTavish, the claimant's expert in agricultural economics, has reviewed the viability of a high density apple replant at length and concludes that such a conversion was not economically feasible. His conclusion is based on a model incorporating: a full time orchard manager for the first three years at an annual salary of $45,000; a new tractor and sprayer at a cost of $35,000; and, an orchard fan at a cost of $42,000, to prevent losses from frost.

Schroeter, the Ministry's expert in agricultural economics, challenges certain of McTavish's cost and revenue assumptions and has run further models to demonstrate the impact of various changes to McTavish's assumptions. Schroeter concentrates on one model (Schroeter Case 5) which he bases on McTavish's preferred model (McTavish Scenario B) with the following changes: replant grant of $3,000 per acre; Okanagan yields and costs (as opposed to 80% of yields and full costs for the Creston area); full replant in year one (as opposed to replanting 50% in year one and 50% in year two); purchase of an orchard fan in year three (as opposed to year one); reduction in professional costs to $10,000 in year one and $5,000 in year two; and, utilization of actual sale prices for years 1992 to 1994 inclusive and a current estimate of the 1995 price.

Schroeter testified that he assumes a replant grant of $3,000 per acre because it has been available in the Okanagan since at least 1991. As data is available on Okanagan yields and costs, he uses these in preference to McTavish's Creston data. While a 100% replant in year one increases year one costs, it results in greater productivity in years two and following and a better return. Schroeter reasons that since there would have been little or no production to protect in years one and two and there was provision for crop insurance in the model, it is appropriate to move the orchard fan investment to year three. He is also of the opinion that McTavish's provision for an orchard manager at $45,000 per year over and above all required labour is not supportable given the availability of considerable free advisory resources in the Okanagan. Schroeter considers consulting advice only, at $15,000 spread over the first two years, would be easily adequate. With respect to pricing Schroeter testified that, while McTavish's preferred model pricing assumption is conservative and reasonable, comparison to actual prices proves it was too pessimistic.

Incorporating these adjusted assumptions, Schroeter's preferred model results in the operation breaking even in year 6 versus year 14 for McTavish's preferred model. Assuming the purchase of a less costly orchard fan and the netting of the cost of the tractor and sprayer against the value of larger format equipment no longer needed, Schroeter notes there would be a further improvement in the internal rate of return. Schroeter concludes that, while investment in high density replanting might not have been a suitable choice for the Hertels personally, it was a financially viable alternate use for their property. And in his opinion, even had the Hertels continued with their fruitstand, their existing plantings would have needed modification.

Grant, the Ministry's other expert witness, is an agrologist as well as a real estate appraiser. He suggests in his report that consideration should be given to replanting the Hertel orchard to more modern, productive and marketable varieties, and that direct sales of bulk fruit were still possible from Lot 7. He testified that while certain Hertel varieties were suitable for direct marketing, others required replanting, the need for which in his view always existed and was accelerated by the taking. According to Grant, many of the pre-acquisition plantings on Lot 7 were old and not in keeping with market tastes, and greater efficiencies could have been achieved by high density planting. He concludes that varieties not suitable for direct sales could have been replanted to varieties suitable for sale to commercial packing houses and pedlars.

4.6 After Value and High Density Replant -- Analysis

Whether Lot 7 could have been viably replanted as high density orchard (i.e. whether its highest and best use after the taking was as commercial orchard or alternative agricultural use) is critical to the choice of after value comparables.

Grant considers the highest and best after use to be orchard and homesite with fruit varieties more conducive to a direct marketing operation than to a commercial orchard. He recommends consideration of replanting to more modern, productive and marketable varieties and considers a high density replant to be feasible.

Frampton, on the other hand, concludes that without the fruitstand, the remaining property is marginal orchard land capable only of an alternative agricultural use and, on the basis of the McTavish report, not suitable for conversion to high density fruit trees or other potentially profitable crops. For this reason, he prefers his comparable No. 4 which had a marginal alternative agricultural use, over his comparables Nos. 3 and 5, both of which had uniform production.

Weighing the evidence of McTavish, Grant and Schroeter, the board prefers that of Grant and Schroeter and concludes that high density replanting was an agriculturally and economically viable after use of the property. In particular, the board finds Schroeter's model for replanting persuasive and also agrees with him that, while he would not have recommended such a course to the Hertels in view of their plans to retire, a high density replant was not only viable, but possibly the most viable, use of the remaining land.

Having concluded that a high density replant was viable, the board cannot accept Frampton's choice of his comparable No. 4 as the basis for an $8,000 per acre after land value. His comparable Nos. 3 and 5 are better choices, with values of $9,465 and $10,350 per acre respectively. Grant bases his after land value on his before land value of $12,000 per acre, less 25%, to arrive at an after land value of $9,000 per acre. The board finds Grant's analysis reasonable. If the same approach is applied to the $13,000 per acre before value used by Frampton for size adjustments, the result is an after value of $9,750 per acre. On balance, the board considers Grant's after land value of $9,000 per acre most appropriate.

The experts' estimated after values for the residence (Frampton -- $0; Grant -- $43,400) account for much of the divergence between their overall after values. The claimant justifies its position on the basis that before the Ministry's acquisition of the 30 square metre wedge, there was an advantage in having the house close to the fruitstand which made up for its proximity to the highway. On that argument, the loss of the fruitstand eliminated any benefit the house had gained from being close to the highway and turned it into a distinct disadvantage, since the house is now in a hole next to the highway.

Does the fact that the house and picker's cabin are not only still habitable, but have been continuously lived in by the Hertels and their tenants, reflect in the remaining property's value to a potential purchaser, or is it merely a use peculiar to the Hertels which does not affect property value?

Grant refers to a previous study by his firm concerning the impact of proximity of highways on residential properties, which indicated that the impact was 25% to 30% in the most severe cases, where buffering after the project was not possible or not practical. In Grant's view, while the highway project moved the travelled lanes closer to the Hertel home and left it in a hole, a solid board fence and hedge could provide considerable relief from these impacts. According to Grant, a similar impact on the Nield property across Highway 97 did not result in a reduction in rentals for that property or a loss of occupancy. He estimates the loss to the residential component of the Hertel property at 30% of the before value of the house, landscaping and septic of $62,000, to arrive at an after value for these improvements of $43,400. Grant attributes no value to the fruitstand, but continues to value the other outbuildings, including the picker's cabin and greenhouse at $19,000.

The board finds Grant's approach reasonable, particularly in view of the continued use and therefore utility of the improvements he considers to have ongoing value. The board rejects Frampton's vacant land approach, accepts Grant's estimate and finds the after value of the land and improvements to be $150,000. Therefore, the reduction in market value to the remainder of Lot 7 is, rounded, $115,000.



5.1 Generally

The parties disagree on the inherent potential of the Hertels' business. They disagree on whether the Hertels had or demonstrated the ability to operate it competently and profitably. They also disagree on the feasibility of relocating the business.

The claimant believes that the business was capable of development as a top grade fruitstand/orchard tour enterprise, and that she and her husband were in the process of doing that when access and visibility were cut off by the Ministry's changes to Highway 97. She also believes that their unique business and personal circumstances made it impossible to relocate to another site. Her counsel describes the claim for business interruption and terminal loss as follows in written submissions:

Bonaterra Orchard clearly provided a personal livelihood for Ted and Marisa Hertel; they were occupied full time in its operation.

The impact of the taking had brought about a personal loss of income which they would have enjoyed but for the taking.

The loss should be calculated with regard to the circumstances of the owner; here it was a reasonable expectation that the owner would operate Bonaterra Orchard and derive an income therefrom until 1994 and that the loss of that opportunity could not reasonably have been mitigated by seeking employment elsewhere between 1991 and 1994.

The Ministry maintains that the Hertel's operation was never in the best location or of the highest grade for a fruitstand, and that these problems were compounded by the Hertels' inexperience and mismanagement. The Ministry portrays the business as one that never generated a profit, had no goodwill, and was always destined to be a marginal operation. It concedes a modest business interruption loss of $11,000 in 1989 and 1990, but no terminal loss because the Ministry says that the business was capable of relocation.

5.2 Terminal Loss -- Evidence and Analysis

Section 34 (4) provides that where the board determines that it is not feasible for an owner to relocate their business, there may be included in the compensation that is otherwise payable, an additional amount not exceeding the value of the goodwill of the business.

Features of the business relied upon by the claimant to establish that relocation was not feasible were that it would have created difficulties in transporting fruit to the fruitstand, that relocation was incompatible with their business plan which contemplated retirement at the end of 1994, and that relocation would have made it impossible to run orchard tours. Did characteristics peculiar to the Hertels' business, combined with the age of the claimant and her husband, make it not feasible for them to relocate the fruitstand business, or did the Hertels simply choose not to relocate for personal reasons?

The first of these arguments seems to turn on the prospect of moving the fruitstand alone onto a new property. We reject this in the face of the evidence. The Redies property located just south of Lot 7 was a suitable, if not superior, property for an orchard/fruitstand. Similarly, the Nunes property located nearby was also suitable for development of an orchard/fruitstand business, and changed ownership in June 1991. The board heard evidence that, even at the time of the compensation hearing, the Kita fruitstand was opening on leased land just south of Lot 7, at the southwest corner of Jones Flat Road and Highway 97. Rather than having direct highway access, the Kita fruitstand will be accessed from a short street immediately off the highway. Because Kita is the first fruitstand on the south bound side of the highway after Peachland, Grant considers that its location is actually superior to the east side location of Lot 7. All of these properties have access to Highway 97 and were developable as fruitstand operations by building a fruitstand and applying to the Ministry for a highway access permit. The board concludes that relocation of the claimant's business was feasible, given the existence of suitable nearby properties, particularly the Redies and Nunes properties which included orchards comparable in size to the orchard on Lot 7.

As for interference with the Hertels' "business plan", the board accepts that, before the highway improvement project, the Hertels had intended to live on Lot 7 and operate their orchard/fruitstand business until their retirement, which they probably hoped would be sooner rather than later. The board rejects these intentions, however, as a basis for concluding that it was not feasible for the claimant to relocate the business within the meaning of s. 34 (4) of the Act. A determination under s. 34 (4) that it is not feasible to relocate a business is intended to reflect business reality, and that the reason presented by the claimant represents, more or less, her personal preference and choice rather than business reality.

As for the Hertels' intention to run orchard tours, the board is not satisfied that Mr. Hertel's replanting of the Lot 7 orchard with varied fruit types was so advanced or so unique a project that it could not have been pursued on another site. While Mr. Hertel clearly believed that his varied plantings were critical to running orchard tours, other witnesses (Grant and Spence) did not attach particular importance to this feature for the success of the orchard tours. The board concludes that Mr. Hertel's plantings on Lot 7 did not make it not feasible, that is impracticable or impossible, for the claimant's business to be relocated.

The claimant's evidence on the issue of relocation also tended to be somewhat vague, which reinforced the board's impression that she did not seriously or objectively consider relocating to nearby lands. Thus, even though the claimant asserted that she and her husband "considered all the options", the board has been left with evidence from the Ministry of suitable nearby properties, and no concrete evidence from the claimant as to why those properties were not suitable for relocation following Lot 7's dislocation in 1990. The board concludes that the claimant's age and desire to stay on Lot 7 until retirement did not make it not feasible for the business to be relocated.

The question of partial relocation of the claimant's business on or adjacent to Lot 7 was also raised but was shown not to be feasible. While the Ministry's project has left the south-eastern part of Lot 7, the Hertels' home and fruitstand, in a hole in relation to the grade of the highway, the north-eastern corner of Lot 7 is not so affected and has simply ended up bordering a surplus fill area which is actually the old pre-improvement highway road allowance. There was evidence that the claimant did inquire with the Ministry about moving the fruitstand onto the old road allowance, but was informed by a letter dated December 20, 1990, and possibly earlier as well, that this was not a suitable location. A number of reasons were given, including concerns about the stability of the road allowance for commercial purposes and the unavailability of safe left turn access off the highway.

Having reached the conclusion that it was feasible for the claimant to relocate her business, a termination allowance under s. 33 (4) is not available. It is therefore unnecessary for the board to consider the applicability of Plouffe v. Ottawa (City) (1973), 4 L.C.R. 37, a decision of the former Ontario Land Compensation Board, cited by claimant's counsel, dealing with a termination allowance where relocation was determined not to be feasible.

5.3 Business, Financial and Personal Losses -- Evidence

The claimant's business loss claim of $188,324 is derived from the report of Pellegrin, her business valuation expert. He bases his calculation on the difference between what the Hertels earned through the orchard from 1989 to 1994, and what they projected they would have earned from the orchard over the same period had there been no highway project.

In calculating projected earnings, Pellegrin uses the Hertels' revenue figures, but has adjusted their projected cost of sales and wages upward. Pellegrin takes into account: prior years sales and the expectation of increased sales from the expanded fruitstand; traffic volume information indicating slowly increasing volumes; and, discussions with people knowledgeable in the fruitstand and orchard tour businesses. Pellegrin concludes that the Hertels' key assumptions were reasonable: maximum sales of $150,000 per year achievable by 1994; maximum own produce sales of $60,000 per annum by 1993; and orchard tour revenues ranging from $1,000 in 1989 to $20,000 in later years. Pellegrin's adjustments to the Hertel projections are: to increase the cost of purchased fruit and vegetables from 50% to 60%; to increase the cost of self processed products from 20% to 33%; to increase the cost of snackbar supplies from 25% to 33%; and to increase wages from $6,000 plus 5% of sales over $50,000, to $6,000 plus 10% of sales over $50,000, with a corresponding increase in the cost of employee benefits at a factor of 12% of wages.

Spence, the Ministry's business valuation expert, approaches the same analysis as Pellegrin, but arrives at a loss of only $68,000. On the revenue side, Spence has projected smaller percentage increases than the Hertels for sales of both purchased produce and own produce. With respect to revenue from orchard tours, Spence has introduced probability factors to account for various risks outlined in his report. These probability factors reduce projected orchard tour revenues by one-quarter in 1990 and one-half thereafter. Spence's adjustments result in overall revenue reductions of $8,600 for years 1989 and 1990 and $70,200 for years 1991 through 1994. The maximum revenue he projects is $126,000 in 1994.

Comparing the experts' projected expenses, the board found it useful to look at the first two years (1989 and 1990) as one unit and the following 4 years (1991 through 1994) as another unit. There is little difference in total projected expenses for the years 1989 and 1990, with Pellegrin's total projected expenses being $370 higher than Spence's. The real difference arises in the years 1991 through 1994, and is largely attributable to only two items: Spence's inclusion of a contingency adjustment aggregating $18,000 over the four years; and a difference in projected advertising costs, with Pellegrin projecting expenses of $10,800 over the four years and Spence projecting $23,000 over the same period. These two items account for all but $3,550 of the difference between the experts' expense projections for 1991 through 1994. A difference in estimated depreciation/amortization of $1,000 per year more than accounts for that remaining $3,550.

Detailed review of the other expense items shows that while Spence is higher in his estimates for some items and Pellegrin lower, the reverse is also true. Pellegrin is higher on costs of sales of processed products, wages, packaging, and replanting; Spence is higher on costs of sales of purchased fruit, orchard tour wages, repairs and maintenance, fertilizers and pesticides, contract pruning, and under the miscellaneous category.

The claimant says that Spence's adjustments are overly conservative in their emphasis of the unproven nature of some aspects of the Hertels' projections, and that his approach unfairly penalizes the claimant when it is the Ministry that is responsible for depriving the claimant of an opportunity to realize on her investment in her business.

5.4 Business, Financial and Personal Losses -- Analysis

Section 34 (1) (a) of the Act provides for the payment of disturbances damages consisting of:

(a) reasonable costs, expenses and financial losses that are directly attributable to the disturbance caused to the owner by the expropriation;

Section 40 (1) (b) of the Act, which deals with partial takings, provides for compensation for:

(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.

It was not until late 1990 or early 1991 that the Hertels learned that highway access would not be restored, and it was therefore reasonable for them to continue their business from the start of construction in 1989 through the 1990 summer season. The board finds the business losses arising in these two years are compensable under section 40 (1) (b) of the Act. Pellegrin projects these losses at $23,000 while Spence projects them at $11,000. The bulk of the difference arises out of the experts' estimates of projected revenues for these two years.

Spence's revenue projections are conservative, while Pellegrin's are more aggressive. Pellegrin cites various factors to support his revenue projections: the Hertels' facilities had been improved in 1988; traffic volumes were steadily increasing; despite construction in 1989, actual revenues increased to $54,800 in 1989 from $47,127 in 1988; in 1990, the period of operation was extended into the months of May, June and October; and, projected increases in subsequent years were consistent with the experience of the Hertels' competition and the industry in general. On the basis of these factors, the board accepts that Pellegrin's projection of maximum revenues of $150,000 in 1994 was achievable.

While estimates as to the mix of own produce versus purchased produce and year over year percentage increases are less certain, the board also accepts Pellegrin's projections in these aspects as reasonable.

Reviewing Spence's projections on an overall basis, we think Spence layered conservatism on conservatism. This is particularly evident in his reduction of orchard tour revenues by factors of 20% in 1989, 25% in 1990 and 50% thereafter, his lower other revenue projections in all years, and then his subsequent layering in of a 5% contingency on the expense side. The board concludes that Pellegrin's projections are more reasonable and, with one exception, accepts them for the purpose of quantifying the businesses losses suffered in 1989 and 1990. The exception is that the board agrees with the adjustments made by Spence to actual income, which restate income on a before interest and taxes basis, and also deduct capital expenditures and capital cost allowance in view of the depreciation approach utilized by both experts. Using Pellegrin's projected income before interest and taxes for 1989 of $4,246 and for 1990 of $15,780, and Spence's adjusted actual income for those same years indicating a profit of $1,000 in 1989 and a loss of $1,000 in 1990, the business loss for those years aggregates $20,026. The board finds the claimant is entitled to compensation for this amount as a business loss under section 40 (1) (b) of the Act attributable to the construction of the highway during the years 1989 and 1990.

During 1991 to 1994, the fruitstand operation was no longer feasible, but the Hertels switched to back door direct sales rather than relocating their business. Since the board has found that it was feasible to relocate the business, their mitigation of losses becomes relevant. The Hertels' options were to discontinue all operations and seek alternate employment; to sell the property and relocate their business, in which case they would have been entitled to relocation costs under section 34 (1) (b); or to scale back and sell their orchard produce as best they could. However, an open-ended claim for financial losses under s. 34 (1) (a) or for personal and business losses under s. 40 (1) (b) is not an option under the Act.

The Hertels chose to scale back and sell their orchard produce as best they could, without replanting high density varieties, and they continued in this vein despite, according to their own calculations, experiencing losses in every year or, according to Spence's adjusted actual income calculations, only breaking even over the four years.

The question put by the Ministry is why it should be required to support the continuation of a bad business. The claimant argues that it was the only option open, given the Hertels' ages and plans for their business. We have addressed the issue of relocation above and have found that, while relocation might not have been the personal choice of the Hertels, it was feasible. The claimant argues that she and her husband could not mitigate their loss of income by seeking employment elsewhere. Utilizing Pellegrin's projections of income before interest and taxes for the four years in question, the average income from the fruitstand operation, had there been no highway project, would have been in the range of $40,500 per annum. While recognizing the age of the Hertels and that neither of them was employed outside Lot 7 after 1988, the board finds that seeking outside employment to replace their fruitstand income would have been a more reasonable course of action than the path they chose. Considering their age, qualifications, experience and abilities, the board finds that together, Mr. and Mrs. Hertel could have obtained employment within a year to replace the level of income Pellegrin projects they would have achieved from Lot 7 in the absence of the Ministry's highway improvement project.

The board agrees with the Ministry that it should not have to support the continuation of a business which is not successful. In our view, the Hertels' choice to switch to back door direct sales was not a reasonable attempt to mitigate their losses given the other options open to them. All other things being equal, the most reasonable course of mitigation was for the Hertels to relocate their business. However, given their personal preferences, in particular their desire to retire after 1994, their decision not to relocate was understandable. In this context, the most reasonable course of mitigation open to them was to cease operations and seek outside employment to replace their lost income. The claimant says this would not have been reasonable in view of the fixed costs of the Lot 7 operation. However, no analysis of fixed costs was presented and the only evidence on this point is that in Pellegrin's report indicating the following annual fixed costs: mortgage interest $5,837; property taxes and irrigation $603; insurance $778 and electricity $1,122. Pellegrin acknowledges that some of these costs would reduce if operations ceased and that a portion of these costs (mortgage interest, property taxes, insurance and electricity) were attributable to the home, in any event. We are not persuaded that there is sufficient evidence on this point to establish losses related to ongoing fixed costs attributable to the fruitstand operations, which could not otherwise have been mitigated.

The board denies the claim for compensation for business losses from 1991 to 1994. We do find, however, that even if the Hertels had ceased operations and sought alternative employment to mitigate the loss of their business, they would have experienced a personal loss equivalent to one year's average income of $40,500. The claimant is therefore entitled to compensation for this personal loss in the amount of $40,500 under section 40 (1)(b) of the Act.

5.5 Owners' Time and Other Losses -- Evidence and Analysis

The claimant adduced evidence relating to a number of possible other losses including claims for expenses, for owners' time, for capital expenditures wasted, and for unsold fruitstand inventory.

Claimant's counsel characterized this part of the claim as follows in written submissions:

Evidence was led of executive time, unsold inventory and out-of-pocket expenses related to dealing with the respondent on this matter. Those losses or expenses are either included in the business loss calculation or they are costs eligible for recovery under s. 44 [45] of the Act. The evidence, however, provides confirmation that business losses were suffered.

Evidence was also led of certain capital investments made by the Hertels in the subject property. If compensation is awarded for business losses as claimed, then no further compensation would be required in respect of that investment. However, if such losses are not awarded, an award should be made in respect of the portion of such investment which was wasted due to premature termination of the business.

Schedules tendered by Mr. and Mrs. Hertel contain a miscellany of expenses incurred, and activities undertaken, by them from 1989 to 1994. Some of the expenses and activities relate to their operation of, or attempts to continue operating, the business on Lot 7. Some relate to their dealings with lawyers, experts and the Ministry concerning the taking or its impact.

No award is warranted for owners' time and other expenses in 1989 and 1990. The board has already awarded the claimant $20,026 for business losses in 1989 and 1990, and will also be making an order for costs under s. 45 of the Act. The owners' time claimed for that period is already included in the business loss award. The other expenses, if they are compensable, are costs incurred to advance the compensation claim which fall to be claimed under s. 45 of the Act.

Some minor advertising commitments made very early in 1991, while the Hertels were still pursuing the issue of restored highway access, and mower repairs due to highway construction disturbance, are compensable. Based on the Hertels' testimony, and in the absence of receipts, $700 is awarded for these items.

The remaining miscellaneous expenses claimed for 1991 relate to dealings with lawyers, experts and the Ministry concerning the taking or its impact, and thus, if they are compensable, must be pursued under s. 45 of the Act. The other expenses claimed for 1992 to 1994 also fall under this category.

Owners' time is also claimed for 1991 to 1994. The Ministry opposes this on the ground that owners' time spent advancing the compensation claim is not compensable. Claimant's counsel answers by saying that the claim is for "executive time" lost dealing with business difficulties, negotiations or discussions arising out of the taking. The problem, in the board's view, is that executive time loss is not compensation for time spent per se. Rather, it is a business loss which can only be made out by showing an actual out-of-pocket loss to the claimant's business. In this case, the board has found that in 1991 the Hertels ought to have either relocated their business or, if they chose not to relocate it, mitigated their damages by seeking alternative employment. The Hertels did neither. Their time spent dealing with the taking or its impact is not, in these circumstances, an executive time business loss.

The claim for wasted capital investments covers an extensive list of acquisitions by the Hertels from 1981 to 1990. The board rejects this claim in its entirety. It appears to include the original purchase cost of Lot 7 and its improvements, costs for upgrading the fruitstand and house, for replanting the orchard, for paved parking and signage, and for orchard machinery and fruitstand equipment still owned by the Hertels after the taking. We accept the position of the Ministry, which is based on the opinion of Pellegrin, the claimant's business valuer, who wrote as follows to claimant's counsel on April 13, 1995:

The majority of the fixed asset value is included in the real property and in my opinion reflected in the real estate appraisal. The applicable fixed asset accounts that are likely part of the realty are as follows:

Fruitstand additions

House renovations and improvements

Orchard replant/improvements

Roadway parking


Other fixed asset accounts include the following:

Fruitstand equipment

Machinery and automotive

Regarding fruitstand equipment, by disposition of assets, the Hertel's [sic] have recovered most of their initial investment.

Machinery and automotive includes a 1987 Nissan pickup, a tractor and sprayer equipment as well as miscellaneous items such as chainsaw. These assets either are used personally or have residual value which approximates their present depreciated value.

I believe the loss on diminution of capital assets is either included in the appraisal of the real property or is not a significant amount.

The claim for unsold inventory is $3,258.68 and was apparently not advanced prior to the commencement of the hearing. The Ministry takes the position that, assuming this amount reflects wholesale not retail costs and none of the items was later resold, then the claimant should be compensated. It is concerned, however, that because this claim was not made earlier, it should not affect the adequacy of the advance payment or attract any interest. We agree and award a rounded $3,259, with no interest until the conclusion of the evidence at the compensation hearing.



The board awards interest under s. 46 (1)(b) of the Act as follows:

(a) Reduction in value to the remainder ($115,000) -- The claimant submits that interest should run from July 22, 1991, the parties' agreed valuation date, and also the date of the agreement under s. 3 of the Act. Since the Ministry's advance payment of $115,000 was not made until July 29, 1991, interest on $115,000 will be payable for the seven day period between the valuation date and the date of the advance payment.

(b) Business losses ($20,026) -- This figure consists of $3,246 for 1989 business losses and $16,780 for 1990 business losses. In accord with the claimant's submission that interest on business losses should run from the end of each year in which they were suffered, interest will run from December 31, 1989, on $3,246 and from December 31, 1990, on $16,780.

(c) Unsold fruitstand inventory ($3,259) -- Since the claimant did not particularize these items until the compensation hearing, interest will only run from the conclusion of the evidence at the hearing on June 30, 1995.

(d) Personal losses ($40,500 and $700) -- In accord with the claimant's submission that interest on personal losses should run from the end of each year in which they were suffered, interest will run on these amounts from December 31, 1991.

Section 46 (4) of the Act is applicable because the amount of the Ministry's advance payment ($115,000) is less than 90% of the compensation awarded excluding interest and business loss ($156,200). The board has no discretion here. Additional interest on $156,200 of the award will run at an annual rate of 5% from July 29, 1991, the date of the advance payment, to the date of this decision.



The claimant will have her costs for asserting her claim. In the event that the parties do not agree on the amount of costs to be paid, they will be determined by the chair or vice chair in accordance with s. 45(10) and (11) of the Act.



The board concludes that the claimant is entitled to an award of $179,485, consisting of $115,000 for the reduction in the value of the land remaining after the Ministry's taking, $20,026 for business losses in 1989 and 1990, $3,259 for unsold fruitstand inventory, and personal losses of $40,500 and $700.



The Ministry shall pay the claimant:

1. Compensation under s. 40 (1) (a) for reduction in market value to the remaining land of $115,000;

2. Compensation under s. 40 (1) (b) for business losses of $23,285;

3. Compensation under s. 40 (1) (b) for personal losses of $41,200;

4. Interest under s. 46 (1) on $115,000 from July 22 to 29, 1991; on $3,246 from December 31, 1989 until paid; on $16,780 from December 31, 1990 until paid; on $3,259 from June 30, 1995 until paid; and, on $41,200 from December 31, 1991 until paid, payable at the following rates:

(a) Thirteen and one-quarter per cent (13.25%) from January 1, 1990 to June 30, 1990.

(b) Fourteen and three-quarters per cent (14.75%) from July 1, 1990 to December 31, 1990.

(c) Twelve and three-quarters per cent (12.75%) from January 1, 1991 to June 30, 1991.

(d) Nine and three-quarters per cent (9.75%) from July 1, 1991 to December 31, 1991.

(e) Eight per cent (8.00%) from January 1, 1992 to June 30, 1992.

(f) Seven per cent (7.00%) from July 1, 1992 to December 31, 1992.

(g) Seven and one-quarter per cent (7.25%) from January 1, 1993 to June 30, 1993.

(h) Six per cent (6.00%) from July 1, 1993 to December 31, 1993.

(i) Five and one-half per cent (5.50%) from January 1, 1994 to June 30, 1994.

(j) Eight per cent (8.00%) from July 1, 1994 to December 31, 1994.

(k) Eight per cent (8.00%) from January 1, 1995 to June 30, 1995.

(l) Eight and three-quarters per cent (8.75%) from July 1, 1995 to December 31, 1995.

(m) Seven and one-half per cent (7.5%) from January 1, 1996 to June 30, 1996.

(n) Six and one-half per cent (6.5%) from July 1, 1996 to December 31, 1996.

(o) Four and three-quarters per cent (4.75%) from January 1, 1997 to June 30, 1997.

5. Additional simple interest under s. 46 (4) on $156,200 at an annual rate of five per cent (5.00%) from July 29, 1991, to the date of this decision.

6. The actual reasonable legal, appraisal and other costs necessarily incurred by the claimant for the purpose of asserting her claims in this proceeding as agreed by the parties, or failing that, as determined and allowed on an application to the board under s. 45.



Government of British Columbia