June 2, 2000, E.C.B. No.
34/91/185 (70 L.C.R. 29)
Management Services Inc.
Majesty The Queen In Right Of
The Province Of British Columbia
W. Shorthouse, Chair
Burke, Counsel For The Claimant
Alan V.W. Hincks, Counsel For The Respondent
REASONS FOR DECISION
 By notice of motion filed on April 11, 2000, the
respondent, Her Majesty the Queen in Right of the Province
of British Columbia, has applied to the board for the
(1) That the compensation claim of the claimant,
Reon Management Services Inc., as set out in its Form
A application for determination of compensation filed
on July 11, 1991, is settled as between the claimant
and the respondent on the terms set out in a letter
of counsel for the respondent dated April 6,
(2) That in the absence of specific agreement between
the parties, interest pursuant to subsection 46(4) of
the Expropriation Act, R.S.B.C. 1996, c. 125
(the "Act"), is not payable on settlements
of claims made pursuant to the Act.
 This unusual application raises the threshold question
of the board's jurisdiction to determine whether a compensation
claim has been settled and, if so, on what terms, where
both parties say there has been a settlement but hold
differing views as to what the settlement comprises.
The claimant contends that the board is without jurisdiction
in the matter while the respondent argues to the contrary.
 I heard this application alone in Kamloops, B.C.
on April 18, 2000, in my capacity as chair of the board
and in exercising the powers and jurisdiction of the
board pursuant to section 26(5) of the Act. After receiving
initial submissions with respect to the board's jurisdiction,
I decided to hear the respondent's motion, reserving
until later on the threshold jurisdictional issue. The
hearing of the motion occupied the rest of the day.
It was largely concerned with evidence and argument
around the settlement negotiations between counsel for
the parties. Fran Crowhurst, counsel for the respondent
throughout these negotiations, testified as to her role
and was cross-examined at length by the claimant's counsel,
Reinhard Burke. For that reason Ms. Crowhurst's colleague,
Alan Hincks, acted as respondent's counsel on this application.
At the conclusion of the hearing, I reserved my decision
on the respondent's motion. I also requested counsel
to look further into the jurisdictional issue and provide
me, if possible, with any additional authority on point.
Mr. Hincks responded with supplementary written submissions
which were filed with the board on April 28, 2000.
 The compensation claim in this matter arose as
a result of the expropriation by the respondent of a
portion of the claimant's lands located within the City
of Kamloops for the purpose of widening and improving
the Yellowhead Highway. Although the pleadings filed
by the parties reveal a dispute as to the actual date
of expropriation, the purported settlement proceeded
on the basis that the taking took place on August 3,
1990. The parties also disagreed as to whether an advance
payment pursuant to what is now section 20 of the Act
had been made, but again, the purported settlement proceeded
on the basis that the claimant had not received any
compensation for the taking to date.
 It is unnecessary for the purposes of this decision
to trace the history of the claim over roughly the next
nine and a half years, except to point out that most
recently a compensation hearing was scheduled to be
held in Kamloops beginning on April 10, 2000, and was
set for nine consecutive hearing days.
 Toward the end of March, 2000, as the hearing date
approached, the parties began negotiations aimed at
settling the compensation claim. There were several
exchanges of correspondence between counsel commencing
with an offer to settle made by the respondent on March
29, 2000, which the claimant rejected, and culminating
in an offer to settle made by the claimant on April 6,
2000, which the respondent accepted in a letter of same
date. However, at this point, interpretive differences
arose over one of the terms of the purported settlement
which required the respondent to pay interest on the
agreed amount of compensation pursuant to section 46
of the Act. The respondent took the position that it
was only required to pay what might be termed ordinary
interest under subsection 46(1) while the claimant said
the respondent was required to pay not only ordinary
interest but also additional interest under subsection
46(4). Further exchanges of correspondence on the question
followed on April 6, 7, and 10, 2000.
 On the morning of April 7, 2000, counsel for the
parties were before me in a brief teleconference hearing
convened to settle an earlier order which I had made.
At that time Ms. Crowhurst advised that at the outset
of the compensation hearing in Kamloops on April 10th,
the respondent would be making a preliminary argument
that the matter had been settled and would be asking
for a ruling from the hearing panel as to whether or
not the matter had been settled and as to the terms
of the settlement. Although Mr. Burke for the claimant
did not state a position at that time, he wrote to the
board via fax on the afternoon of April 7th as follows:
"Earlier today Ms. Crowhurst advised you that
the respondent takes the position that the parties
have settled this claim.
The claimant agrees that its claim has been settled.
If the parties cannot agree on costs, that claim
will be referred to you for determination."
Based on the foregoing advice from counsel, the board
promptly cancelled its booking arrangements for the
compensation hearing in Kamloops and adjourned the hearing.
The respondent, however, continued to seek a ruling
from the board on the question of settlement which has
resulted in the present application.
 At the hearing of this application, I was made
privy to all of the correspondence and other communications
which flowed between counsel setting out in detail the
proposed terms of the various offers to settle and the
responses to those offers. For that reason, I indicated
my intention to disqualify myself for the future from
adjudicating the claimant's compensation claim if it
were determined that the claim had not been settled
and the parties thereafter proceeded to a hearing. I
also do not intend to set out the monetary terms of
any of the offers, including the claimant's offer of
April 6, 2000, which purportedly resulted in a
settlement of the claim, since disclosing such details
here could arguably prejudice the fair hearing of any
subsequent compensation proceeding.
3. THE ISSUES
 The issues for determination on this application
are as follows:
(1) Does the board have jurisdiction to determine
the respondent's motion regarding settlement?
(2) If the answer to the first issue is "yes",
then has there been a settlement of the claimant's
(3) If the answer to the second issue is "yes",
then what are the terms of the settlement insofar
as they relate to the payment of interest pursuant
to section 46 of the Act?
(4) In the absence of specific agreement between
the parties, is interest pursuant to subsection 46(4)
of the Act payable on settlements of claims made pursuant
to the Act?
4. DOES THE BOARD HAVE JURISDICTION?
4.1 Positions of the Parties
 The claimant takes the position that, where both
parties have advised the board unequivocally that the
claim has been settled, the board has no jurisdiction
to go behind what it has been told and adjudicate on
the settlement. As Mr. Burke expressed it, my opinion
as to whether there has, in fact, been a settlement
or as to its terms is irrelevant. There is, he pointed
out, no express provision within the Act which would
confer jurisdiction on the board to intervene in this
way and the board does not have inherent jurisdiction
to make what amount to declarations of the nature sought
in the respondent's motion. Instead, the proper forum
for hearing such an application is the Supreme Court
of British Columbia. Indeed, two days after the hearing
of this application, the claimant on April 20,
2000, commenced an action in the Supreme Court seeking,
among other things, a declaration that a binding settlement
was achieved on April 6, 2000 on the terms contained
in the claimant's written offer of that date, a declaration
that interest payable on the settlement includes interest
pursuant to subsection 46(1) and subsection 46(4) of
the Act, and damages for breach of the settlement.
 The respondent says the board's jurisdiction to
make the orders sought can be ascertained from the Act
itself, from board and court decisions regarding questions
of jurisdiction, and from subsection 27(2) of the
Interpretation Act, R.S.B.C. 1996, c. 238. In the
respondent's submission, the starting point for determining
this matter is section 26 of the Act, wherein the board
is given the jurisdiction and the statutory duty to
determine a claim for compensation arising out of an
expropriation. The respondent points out that the board
and the courts have ruled that, before embarking on
the exercise of powers pursuant to the Act, the board
must satisfy itself on preliminary or collateral matters.
One of these is an inquiry into whether or not there
are any issues in dispute between the parties. This
inquiry necessarily includes a finding as to whether
a settlement has been reached and the terms of any such
settlement. The respondent submits that the absence
of a specific statutory provision that sets out the
power to determine settlement issues is not fatal to
the board's jurisdiction since, it says, jurisdiction
extends to matters that are fundamental to the board's
role in determining compensation and to matters incidental
and ancillary that arise in the course of a determination.
In the respondent's view, the fact that the claimant
has commenced proceedings in the Supreme Court does
not affect the board's jurisdiction to adjudicate on
the issues before it on this application.
4.2 Analysis and Conclusion
 Neither counsel was able to locate and provide
to me any case authority outside the board's own jurisprudence
on the question of whether the board has jurisdiction
to determine if a binding settlement has taken place.
My own researches have similarly failed to produce any
 There have been at least two prior instances in
which the board has made a finding of fact as to whether
a settlement has occurred and two others in which the
board has interpreted the language set out in a settlement
agreement with respect to payment of interest.
 In Abma v. British Columbia (Minister of Transportation
and Highways) (1994), 53 L.C.R. 158, the former
chair of the board on a contested motion dismissed the
claimant's application for an advance cost review pursuant
to what is now section 48 of the Act. In earlier proceedings
before the chair, claimant's counsel, Mr. Burke, had
agreed to withdraw his client's application if the respondent
paid his legal account at a specified hourly rate. The
respondent subsequently did so, but Mr. Burke advised
that his client had changed his mind and was no longer
willing to withdraw the application. The chair said
she was satisfied that the matter had been settled by
the parties according to conditions advanced by claimant's
counsel and met by the respondent.
 In Harshenin v. British Columbia (Minister
of Transportation and Highways) (1999), 68 L.C.R.
137, the parties, just prior to the scheduled compensation
hearing, executed a partial release of claim and a consent
dismissal order. The compensation hearing was to proceed
only on the unresolved heads of the claim. However,
there were acknowledged errors in the initial settlement
documents. At the hearing, the claimant expressed a
reluctance to sign new and corrected documents and the
parties also appeared to disagree somewhat on the scope
of the settlement. In my reasons for decision following
the compensation hearing, I stated as follows, at p. 143:
In these circumstances, I consider it necessary to
set out my view with respect to the settlement. I
find as a fact that the parties did reach a binding
settlement of all claims in dispute in this matter,
except those which are expressly excluded in the partial
release of claim.
 Even in cases where the parties acknowledge that
there has been a settlement, but disagree as to the
interpretation of a specific term, the board has made
a determination with respect to that term. In Richland
Farms Ltd. v. British Columbia (Ministry of Transportation
and Highways) (1991), 46 L.C.R. 66, the parties
reached a settlement just as the compensation hearing
was to begin. A consent order, approved and signed by
both counsel, filed with the board, endorsed by the
chair and entered, provided for the respondent to pay
the sum of $700,000 plus costs and "interest pursuant
to s. 45 [now section 46] of the Expropriation Act."
While payment of interest pursuant to subsection 45(1)
had been resolved, additional interest pursuant to subsection
45(4) remained an issue which was remitted to the board
for an order. The chair found that the consent order
was binding on the parties and had the same force and
effect as if it were an award following a full hearing
before the board. Having so decided, the chair also
found in the circumstances of that case that interest
was payable pursuant to subsection 45(4).
 In Wu v. British Columbia (Minister of Transportation
and Highways) (1999), 68 L.C.R. 73, the respondent
offered to settle the claimant's claim for a specified
amount above the advance payment, plus interest under
subsection 46(1), plus costs. The claimant accepted
the offer on three conditions, one of which was that
the claimant be at liberty to apply to the board for
an order that she was also entitled to additional interest
under subsection 46(4). The respondent accepted all
three conditions, whereupon the claimant signed a release
of claims except for interest under subsection 46(4)
and costs to pursue the claim for additional interest.
The parties also executed a consent dismissal order
which was filed with the board, endorsed by the chair
and entered. Subsequently, the claimant brought an application
seeking an order that she was entitled to additional
interest under the settlement. The vice-chair found
in these circumstances that no interest was payable
pursuant to subsection 46(4).
 The determination of the existence of a settlement,
and its terms, is an adjudication of the binding force
of a contract between the parties. In Golden Valley
Golf Course Ltd. v. British Columbia (Minister of Transportation
and Highways) (1998), 65 L.C.R. 151, the board ruled
on contractual issues between the parties. The respondent
in that case made an advance payment to the claimant
after negotiating an agreement which provided that the
value of the land would be determined pursuant to the
Act. As part of the agreement the respondent obtained
a mortgage from the claimant to secure any anticipated
overpayment. The claimant, rather than proceeding to
a compensation hearing, filed with the board a notice
of discontinuance of its claim. The respondent applied
to the board for an order that the amount of compensation
be decided by the board notwithstanding the notice of
discontinuance. The board granted the respondent's application,
noting as follows at p. 160:
In the present situation Golden Valley made an agreement
with the respondent MoTH which contemplated that the
amount of the compensation would be determined by
this board. MoTH relied on that agreement and it would
now be unfair and unjust to allow Golden Valley to
breach its agreement by discontinuing the claim.
 In Golden Valley the board found that
it had jurisdiction to refuse to accept a discontinuance.
It should be noted that the board's decision is under
appeal to the British Columbia Court of Appeal and that
at least one of the grounds upon which leave to appeal
has been granted is that the board erred in finding
that it had jurisdiction to rule on an alleged breach
 None of the other decisions cited above expressly
addresses the question of the board's jurisdiction to
adjudicate on settlement issues. Neither does the Act
expressly confer on the board the jurisdiction to deal
with the question of settlement. Nevertheless, it seems
to me that the case for finding in favour of jurisdiction
in these circumstances is compelling.
 The Supreme Court of British Columbia in Whitechapel
Estates Ltd. v. British Columbia (Ministry of Transportation
and Highways) (1999), 66 L.C.R. 193, has recognized
that the Act creates in the board a special forum which,
in the absence of agreement, must determine compensation
whenever any expropriating authority takes land. As
Macdonald J. observed at p. 197, "exclusive
jurisdiction" in this regard is given to the board.
 Since, as the respondent points out, the board
is not in the business of resolving moot issues, the
board must therefore ascertain certain threshold questions
such as whether an expropriation bylaw is valid (see
McKinnon v. Duncan (City) (1992), 47 L.C.R.
47 (B.C.E.C.B.)), whether there has been an expropriation
(see White v. Prince George (City) (1993), 50
L.C.R. 260 (B.C.E.C.B.); McEachern v. British Columbia
Hydro and Power Authority (1997), 60 L.C.R. 186
(B.C.E.C.B.); Richmond (City) v. British Columbia
(Expropriation Compensation Board) (1997), 61 L.C.R.
83 (B.C.S.C.)), or whether limitation periods apply
(see Haughton v. Heffley Creek (Waterworks District)
(1999), 66 L.C.R. 1 (B.C.E.C.B.)).
 Similarly, the board cannot perform its statutory
duty without first inquiring as to what issues require
determination. Where the matter is in doubt, this includes
deciding, as in Abma and Harshenin, whether
a settlement has been reached. It extends to deciding,
upon application as in Richland Farms and Wu,
where there has been a settlement agreement but the
parties disagree on the application of the Act to certain
of its terms for compensation, what construction is
to be put upon those terms.
 I agree with the respondent that the board does
not have inherent jurisdiction like the Supreme Court
to make declarations, but it does have the power to
make orders, decisions and determinations. It is not
declaratory relief which the respondent seeks. The fact
that the claimant has commenced proceedings in the Supreme
Court, suing on the purported settlement, does not,
in my opinion, oust the jurisdiction of the board.
 Support for the board's implied jurisdiction in
this matter can be found both at common law and in statute.
It is an established principle of common law, recognized
in decisions of the Supreme Court of Canada, that the
powers conferred by an enabling statute include not
only those which are expressly granted but extend, by
implication, to incidental and ancillary matters which
are reasonably necessary for the accomplishment of statutory
objectives: see Whitechapel Estates Ltd. v. British
Columbia (Ministry of Transportation and Highways South
Coast Region) (1994), 54 L.C.R. 306 (B.C.E.C.B.),
and the cases cited therein.
 Section 27(2) of the Interpretation Act
would appear to be a codification of the common law
rule of statutory interpretation. It provides:
||If in an enactment power is given to a person
to do or enforce the doing of an act or thing, all
the powers that are necessary to enable the person
to do or enforce the doing of the act or thing are
also deemed to be given.
 From all of the foregoing, I conclude that the
board has jurisdiction to determine whether there has
been a settlement of the claimant's claim for compensation
and, if so, on what terms.
5. HAS THERE BEEN A SETTLEMENT?
 Although both parties have told the board that
they have settled the claimant's compensation claim,
it is manifest in their correspondence and submissions
that they disagree on the interpretation of at least
one of the terms of settlement, namely the payment of
interest. In these circumstances, it seems to me that
it is therefore open to the board to find that there
has not, in fact, been a binding settlement and that
the matter of compensation should be remitted to the
board for determination.
 In order to find that there has been a settlement
of the claimant's claims, it has to be proven that there
was a mutual intent to create a legally binding agreement
and that the parties reached agreement on all essential
terms through a final and unqualified expression of
assent. The principle was long ago stated in the House
of Lords in the case of Rossiter v. Miller (1878),
3 App. Cas. 1124, [1874-80] All E.R. 465, as follows:
... it is a necessary part of the appellants' case
to show that the two parties had come to a final and
complete agreement, for, if not, there was no contract.
So long as they are only in negotiation, either party
may retract, and, although the parties may have agreed
on all the cardinal points of the intended agreement,
yet, if some particulars essential to it still remain
to be settled afterwards, there is no contract ...
That principle was restated and adopted in a recent
judgment of the Nova Scotia Court of Appeal in Sinanan
v. Woodyer  N.S.J. No. 166, a case cited by
the respondent, which discusses at length the essential
terms of offer and acceptance in order to determine
whether the parties there had reached a settlement of
 In light of the above, I turn now to a review
of the faxed correspondence between counsel for the
claimant and the respondent on April 6, 2000, which
purportedly produced a settlement of the claim (deleting,
as I indicated earlier, any reference to the monetary
 On April 6, 2000, at 11:30 a.m., Mr. Burke for
the claimant wrote to Ms. Crowhurst for the respondent
"I confirm that I have received instructions
from my client to offer to settle this claim as follows:
1. Your client would pay $[...] in compensation to
the claimant measured as of August 3, 1990. The sum
would be "new" money as Reon has not received
any compensation for the taking to date.
2. Your client would pay interest on the $[...] pursuant
to s. 46 of the Act.
3. Your client would pay Reon's costs pursuant to
s. 45 of the Act. If the parties cannot agree
on the amount of costs, the Chair or Vice-Chair would
determine costs pursuant to the Act.
4. The Board would be advised that the claim has
5. A consent order would be signed dismissing Reon's
This offer is open for acceptance until 4:00 p.m.
 Ms. Crowhurst replied to Mr. Burke in a letter
of same date some time between l:30 and 2:30 p.m.
"I am writing further to your letter of today's
date setting out your offer to settle and advise that
I am instructed to accept the offer contained therein.
I have attached the interest calculation from August
3, 1990 to April 7, 2000 on $[...]. The total amount
payable by MoTH, exclusive of costs, will be $[...].
I will leave it to you to advise the Expropriation
Compensation Board of the settlement. I will attend
to drawing up the settlement documents and will forward
them to you when I receive the settlement funds from
the Ministry of Transportation and Highways which
I anticipate to be within the next two weeks."
 It is, of course, these two letters which the
parties say constituted the offer and acceptance creating
a binding settlement of all the claimant's claims except
for costs. However, further faxed correspondence followed
in the course of April 6, 7, and 10, 2000, to which
I consider reference should also be made.
 At 3:27 p.m. on April 6th, Mr. Burke wrote to
"Thank you for your letter of April 6, 2000.
My client's offer to settle was intended to include
interest under ss.46(1) and 46(4) of the Expropriation
Act. Your letter of acceptance suggests that you
did not construe the offer in this way.
Unless the interest to be paid by your client includes
interest under s.46(4) of the Act, there is
Please let us know your client's position."
 In response, Ms. Crowhurst sent the following
letter to Mr. Burke at approximately 4:30 p.m.
"I am writing further to your letter of today's
date, received by me at 3:27 p.m. via facsimile,
and to your voice mail message left at 3:08 p.m.
In the latter you indicated that this matter has
been settled. The Respondent Ministry considers that
this matter has been settled on the terms set out
in my letter of earlier today. The Ministry's position
is that section 46(4) interest is not payable on negotiated
settlements. This is, of course, consistent with E.C.B.
rulings and the Act's wording. Therefore,
the amount of $[...] (exclusive of costs) is the amount
of the settlement.
Absent confirmation from you that you agree with
the above, the Ministry will assume that you will
be proceeding with the compensation hearing on April 10,
 I have already discussed what transpired before
the board the next morning, April 7, 2000, and
have recited the letter from Mr. Burke to the board
that afternoon confirming settlement of the claimant's
claim. The letter was faxed to the board at 3:02 p.m.
and was evidently also faxed to Ms. Crowhurst. A further
letter from claimant's counsel to respondent's counsel
followed at 3:38 p.m. It stated:
"Earlier today, you advised the Chair that the
respondent took the position that this claim had been
settled. We have now also advised the Chair that the
claim has been settled.
The calculation of interest to be paid as set out
in your letter of April 6, 2000 is incorrect. The
settlement obligates your client to pay interest pursuant
to s.46, which includes s.46(1) and s.46(4).
We refer you to the decision of the Expropriation
Compensation Board in Richland Farms Ltd. v. British
Columbia Minister of Transportation and Highways
 B.C.E.A. 22. In that case, the Expropriation
Compensation Board expressly found that the reference
to interest pursuant to s.46 of the Expropriation
Act in an order clearly included interest pursuant
to s.46(1) and interest pursuant to s.46(4).
Please confirm that you agree that your interest
calculation of April 6, 2000 is in error. If you do
not acknowledge that your calculation was in error,
we have instructions to bring an action on the settlement
in the Supreme Court of British Columbia immediately.
We look forward to hearing from you."
 Ms. Crowhurst's response on April 10th to the
letter of April 7th from Mr. Burke was simply a reiteration
of the respondent's position that the matter had been
settled on the terms of her letter dated April 6th which
included the interest calculations.
 In my view, there are two questions which arise
from the foregoing correspondence bearing on the issue
of whether the parties reached a settlement. The first
question is whether the respondent's initial response
to the claimant's offer on April 6, 2000, constituted
an unqualified acceptance of that offer or was, instead,
a counter-offer, notwithstanding that the respondent
did not characterize it as such. The second question
is whether the exchanges of correspondence which ensued
thereafter had the effect of undoing any settlement
which might otherwise be said to have been concluded.
 The nature and effect of a counter-offer was explored
in the Sinanan case. At page 8 of its reasons
for judgment, the Nova Scotia Court of Appeal noted
the frequent difficulty in determining from the language
of a response to an offer whether that response amounts
to an acceptance or a new offer. The Court cited the
following passage from Professor S.M. Waddams,
The Law of Contracts, 3rd ed. (Toronto: Canada
Law Book Inc., 1993), at pp. 40-41:
It is rare that a reply to an offer states simply
"I accept your offer". If it says less it
may not amount to a definite acceptance. If it says
more, it may be a rejection. Whenever the offeree
adds anything to simple words of acceptance the question
arises whether the addition amounts to a departure
from the terms of the offer. If so, the offeree has
not assented to the offeror's terms. The reply is
at most a counter-offer, and a further communication
of assent will be required from the offeror. This
is not a technical requirement, but simply an aspect
of the enquiry into whether the manifestation of mutual
assent is complete.
 Once a counter-offer has been communicated, it
operates like a new offer, destroys and rejects any
previous offers unless otherwise noted, and is open
for acceptance for a reasonable length of time or until
 In the present instance, respondent's counsel
replied to the claimant's offer of April 6, 2000, by
saying that she was "instructed to accept the offer
contained therein." Ms. Crowhurst then proceeded
to indicate that she had attached the interest calculation
on the amount of compensation and provided a dollar
figure which she said would be the total amount payable
by the respondent, exclusive of costs. The single page
of detailed calculations attached revealed that interest
had been calculated from August 3, 1990 to April 7,
2000 at variable rates consistent with the payment of
ordinary interest only, pursuant to subsection 46(1)
of the Act.
 I find that that there was nothing equivocal or
conditional about the letter from respondent's counsel
in reply to the offer to settle. Acceptance of the claimant's
offer was unqualified. The interest calculations provided
do not, in my view, constitute the addition of a new
term to the agreement, and the respondent's acceptance
was not made subject to the claimant's agreement
with those calculations. Indeed, Ms. Crowhurst under
cross-examination said the calculations were included
merely for clarity. At most they represent the respondent's
interpretation of the agreement which the parties made
respecting payment of interest. Such interpretation
is irrelevant to determining whether there was actually
 On their face the ensuing exchanges of correspondence
appear to cast in some doubt whether the parties subsequently
believed they had settled the claimant's claim. Mr.
Burke, in his further letter of April 6th, took the
position that, unless the interest to be paid by the
respondent included interest under subsection 46(4),
"there is no settlement". Ms. Crowhurst, in
her further letter in reply of that date, referred to
the respondent's interpretation of interest payable
and said the respondent assumed that, "[a]bsent
confirmation from you that you agree with the above",
the claimant would be proceeding to a compensation hearing.
Ms. Crowhurst testified that by that time she was discussing
with her client as one option a "repudiation of
the settlement", but that option was not pursued.
 While this posturing after the fact clearly reveals
a fundamental disagreement between the parties as to
how the term of the settlement regarding interest ought
to be interpreted and carried out, in my opinion it
is equally irrelevant to determining whether a settlement
was concluded and does not have the effect of negating
an agreement already reached.
 Accordingly, I find that a binding settlement
of the claimant's claim for compensation, exclusive
of costs, was reached through the initial exchange of
correspondence between counsel on April 6, 2000.
6. WHAT WAS THE SETTLEMENT REGARDING
6.1 Interest under Section 46
 To say that there has been a binding settlement
in this matter begs the question of what are the terms
of the settlement insofar as they relate to the matter
at issue here, namely the payment of interest pursuant
to section 46 of the Act. The relevant portions of that
section provide as follows:
||The expropriating authority must pay interest
on any amount awarded in excess of any amount paid
by the expropriating authority under section 20(1)
or (12) or otherwise, to be calculated annually, (.
||Interest is payable at an annual rate that is
equal to the prime lending rate of the banker to the
||During the first 6 months of a year, interest
must be calculated at the interest rate under subsection
(2) as at January 1, and during the last 6 months,
interest must be calculated at the interest rate under
subsection (2) as at July 1.
||If the amount of the payment under section 20(1)
or (12) or otherwise is less than 90% of the compensation
awarded, excluding interest and business loss, the
board must order the expropriating authority to pay
additional interest, at an annual rate of 5%, on the
amount of the difference, calculated from the date
that payment is made to the date of the determination
 The term of the concluded settlement respecting
payment of interest is at paragraph 2 of Mr. Burke's
letter of April 6, 2000, setting out the claimant's
offer, and states:
"2. Your client would pay interest on the $[...]
pursuant to section 46 of the Act."
It is obvious from my earlier discussion that the outstanding
issue between the parties is whether interest payable
includes interest under both subsections 46(1) and 46(4).
6.2 The Claimant's Position
 The claimant submits that the accepted offer is
unambiguous with respect to the payment of interest.
In referring to interest pursuant to section 46, the
clear meaning was that interest became payable potentially
under each of the two heads set out in that section,
namely ordinary interest under subsection (1) and additional
interest under subsection (4). Because it was an agreed
term for the purposes of settlement that the claimant
had received no compensation by way of advance payment
under section 20(1) or (12) or otherwise, it follows
that the additional interest under subsection 46(4)
must be payable.
 The claimant says that it was open to the respondent,
if in doubt about the meaning of paragraph 2 of the
offer, to make a preliminary inquiry of the claimant
before accepting the offer. Ms. Crowhurst under cross-examination
acknowledged that she had some concerns about what was
intended but decided not to pursue any such inquiry.
 The claimant relies upon the board's decision
in Richland Farms, where one term of the consent
order settling that matter provided for payment of interest
pursuant to what is now section 46 of the Act without
specifying that this term included both ordinary and
additional interest. In applying to the board to determine
the interest payable on the compensation agreed to,
the claimant submitted that the intention of the parties
was clearly reflected on the face of the consent order
and the board had no alternative but to conclude that
this agreement reflected the bargain made. The respondent
submitted that interest under subsection 46(4) was not
really interest at all but was in the nature of a "penalty"
which should not be assessed on a settlement. The board
found the term in the consent order to be "free
from any ambiguity", that additional interest was
not a penalty, and that payment of such interest was
mandatory, not discretionary, when the advance payment
was less than 90% of the award. After finding that a
consent order has the same force and effect as if it
were an award following a full hearing before the board,
the board determined that the claimant was entitled
to additional interest. The claimant in this matter
points out that paragraph 2 of the accepted offer is
in precisely the same wording as the consent order regarding
payment of interest in Richland Farms.
6.3 The Respondent's Position
 The respondent submits that the way to resolve
this issue is for the board to discover the intention
of the parties regarding payment of interest when the
offer was made and accepted on April 6, 2000. With
respect to intention, the respondent cites the judgment
of the Manitoba Court of Appeal in Atomic Interprovincial
Transport (Eastern) Ltd. v. Geiger (1987), 45 D.L.R.
(4th) 312, wherein the Court, at page 317 of its reasons,
referred to the following comment from William M. Gloag,
Law of Contract, 2nd ed. (1929), at p. 7:
The judicial task is not to discover the actual intentions
of each party: it is to decide what each was reasonably
entitled to conclude from the attitude of the other.
 The key question before the board, in the respondent's
submission, is therefore what, objectively, the claimant
was offering under paragraph 2. The respondent points
out that there is no evidence in any of the exchanges
of correspondence between counsel preceding the offer
and acceptance on April 6th of the respondent's willingness
to pay interest under subsection 46(4). Moreover, there
is no express reference to that subsection in paragraph
2 of the offer. The claimant could have, but did not,
make absolutely clear in its offer that payment of interest
under subsection 46(4) was part of the proposed settlement.
The claimant having failed to do so, the respondent
says it was entitled to conclude that claimant's counsel,
being an experienced practitioner in the area of expropriation,
had taken into account prior board decisions dealing
with this question.
 According to the respondent, the essential distinction
made by the board in Richland Farms and in
Wu was that, in the former case, there was a
"consent order" setting out the terms of the
settlement whereas in the latter case there was a "consent
dismissal order" which did not do so. The wording
in both subsections 46(1) and (4) makes clear that payment
of interest is triggered by an "award" of
compensation that is greater than the amount of the
advance payment. The board in Richland Farms
found that a consent order incorporating the terms of
settlement had the same force and effect as an award
following a hearing before the board and, because the
amount of the advance payment was less than 90% of the
amount "awarded" pursuant to the consent order,
interest under subsection 46(4) was payable. In Wu,
the respondent agreed as part of the settlement to pay
interest under subsection 46(1). The board in its decision
also took into account evidence indicating that the
amount of the advance payment was less than 90% of the
amount of compensation agreed to between the parties.
However, in deciding that additional interest was not
payable, the board made the following distinction, at
In this case, although we accept the affidavit evidence
of the settlement that had been reached, the consent
order itself merely dismisses the claim and does not
set out the terms of the settlement. Therefore, unlike
Richland Farms, on the face of the consent
order there is no "award" for a specified
sum to be paid together with interest under section
(46). The requirements set out in subsection 46(4)
are not present as they were in Richland Farms.
 In light of these two decisions, the respondent
refers to paragraph 5 of the accepted offer. It states
that "a consent order would be signed dismissing
Reon's claim". The respondent submits that it was
reasonable for Ms. Crowhurst to construe from Mr. Burke's
reference to a consent dismissal order in paragraph
5 that the offer did not contemplate payment of additional
interest in the absence of express agreement to that
effect because of what the board had already decided
 Mr. Hincks for the respondent argued that I should
find that it was an "implied term" of the
settlement that the respondent was only required to
pay interest pursuant to subsection 46(1) based upon
the course of dealings between the parties and their
counsel's respective knowledge of the law.
6.4 Analysis and Conclusion
 On its face the settlement of the claimant's claim
with respect to payment of interest is clear and unambiguous,
requiring the respondent to pay interest pursuant to
section 46 of the Act. The language used in paragraph
2 of the accepted offer is identical to that used by
the parties in their consent order in Richland Farms.
It is different from the agreement reached in Wu,
where the respondent expressly agreed to pay interest
under subsection 46(1) but the question of whether interest
was payable under subsection 46(4) was remitted to the
board for determination.
 The difference in outcome between the two foregoing
decisions rested upon a distinction drawn by the board,
with reference to the wording of the Act, between a
"consent order", which was found to have the
force and effect of an "award", and a "consent
dismissal order", which did not. As I observed
in the course of the hearing, it seems to me that the
distinction is one of form rather than substance, inasmuch
as in both cases the advance payments fell short of
90% of the agreed amount of compensation, yet in
Richland Farms the claimant received additional
interest but in Wu the claimant did not. In
my view these cases can stand together but there is
a further distinction to be made in the present instance.
In both Richland Farms and in Wu there
was a concluded order before the board, approved and
signed by counsel for the parties, endorsed by the chair,
and entered. Here, I have no clear indication as to
the form of the consent order other than, pursuant to
paragraph 5 of the accepted offer, that it will dismiss
the claimant's claim. I do have before me the terms
of the accepted offer and I consider that it is open
to me to decide on that basis what construction is to
be put on paragraph 2 regarding interest.
 I agree with the respondent's submission that
my task in determining whether the settlement reached
between the parties included a requirement that the
respondent pay additional interest is to ascertain the
objective intentions underlying the offer and acceptance,
that is to say, what each party was reasonably entitled
to conclude from the attitude of the other.
 As I have indicated, counsel for the parties never
discussed with each other their intentions or expectations
regarding payment of interest before a binding settlement
was reached. I should, however, point out that in an
earlier offer of substantially less compensation made
by Ms. Crowhurst on April 5, 2000, the respondent
provided a global calculation of interest which was
for a substantially greater amount than what would have
been called for simply under subsection 46(1). It was,
also, for a substantially smaller amount than what would
have been payable if interest had been correctly calculated
under both subsections 46(1) and 46(4). In fact, as
Ms. Crowhurst testified, the calculation was erroneous
and, perhaps, on any reasonably prudent review by the
claimant or claimant's counsel, would have been recognized
to be erroneous. In any case, there was no direct response
from the respondent to that offer and I do not regard
the offer as having clarified the objective intentions
of the parties.
 My review of the circumstances surrounding the
settlement do not suggest to me that this is a situation
which calls for the introduction of an implied term,
as submitted by the respondent. The requirements for
implying terms into a contract have been discussed both
in the Atomic Interprovincial Transport decision
of the Manitoba Court of Appeal and in the decision
of the British Columbia Court of Appeal in Procan
Exploration Co. v. Golder Associates (B.C.C.A.)
 B.C.J. No. 2656. With reference both to case
authority and commentators on the law of contract, the
Court in Procan noted at page 6 of its reasons
that a term will not be implied merely because it would
have been reasonable to do so or to improve the bargain
made between the parties. A term will be implied when
it is necessary to give effect to the common intention
and when the parties neglected to state something so
obvious that the parties must have intended it to form
part of their contract. I do not find on the evidence
such an obvious oversight to have been present in this
 In my view, it was incumbent upon the respondent,
having received the offer of April 6, 2000, and being
in some doubt as to the meaning of paragraph 2, to satisfy
itself by inquiry as to the scope of that term before
unequivocally accepting the offer. Instead, as the evidence
of Ms. Crowhurst shows, the respondent recognized that
it had been Mr. Burke's practice in the past on behalf
of clients to assert a claim for additional interest
as part of a proposed settlement, but nevertheless confined
itself to making certain assumptions and strategizing
as to the form of reply.
 I conclude that the settlement of this matter
proceeded on a clear and unambiguous requirement for
the respondent to pay interest to the claimant pursuant
to section 46 of the Act, and this requirement encompassed
payment of interest under both subsections 46(1) and
 Accordingly, it follows that the respondent's
motion for an order that the matter was settled on the
terms set out in the letter of counsel for the respondent
dated April 6, 2000, is dismissed insofar as that letter
purports to calculate the amount of interest payable.
I also dismiss, as both inconsistent with what I have
already decided and with the case authority on point,
the respondent's motion for an order that, in the absence
of specific agreement between the parties, interest
pursuant subsection 46(4) is not payable on settlements
of claims made pursuant to the Act.