decision 2018 nsuarb 95 m06200 nova scotia utility and ... · therefore, vibration amplitudes vary...
TRANSCRIPT
DECISION 2018 NSUARB 95 M06200
NOVA SCOTIA UTILITY AND REVIEW BOARD
IN THE MATTER OF THE EXPROPRIATION ACT
- and -
IN THE MATTER OF AN APPLICATION by BONNIE ANN FRASER and KAREN LYNN CROWLEY to determine compensation, including legal and other costs reasonably incurred, to be paid to it by the ATTORNEY GENERAL FOR THE PROVINCE OF NOVA SCOTIA representing Her Majesty the Queen in Right of the Province of Nova Scotia, in respect to the expropriation of land situate at 319 George Street, New Glasgow, Nova Scotia
BEFORE:
CLAIMANTS:
RESPONDENT:
HEARING DATE:
DECISION DATE:
DECISION:
Dawna J. Ring, Q.C., Member
BONNIE ANN FRASER and KAREN LYNN CROWLEYRobert H. Pineo, LL.B.Jeremy P. Smith, LL.B.
ATTORNEY GENERAL FOR THE PROVINCE OF NOVA SCOTIAMark V. Rieksts, LL.B.
April 23, 2018
April 30,2018
The Crown shall pay to the Claimants $260,000 for costs, disbursements and HST.
Document: 262396
Table of Contents
I SUMMARY 3II FACTS.................................................................................................................................4III ISSUE................................................................................................................................ 11IV LEGISLATION INTERPRETATION...............................................................................11V ARGUMENTS................................................................................................................... 14
1. Parties Agree..............................................................................................................142. Claimants’ Arguments.............................................................................................. 153. The Crown..................................................................................................................20
VI FINDINGS......................................................................................................................... 231. General....................................................................................................................... 232. Specific Costs Issues............................................................................................... 313. Costs for the Hearing................................................................................................ 334. Costs Incurred........................................................................................................... 33
VII COSTS AWARD.............................................................................................................. 36
Document: 262396
726875803885031451819
-3-
I SUMMARY
[1] This is the Board’s cost decision for the Claimants who were injuriously
affected from the construction of a new school in New Glasgow (public work) under the
Expropriation Act, R.S.N.S. 1989, c. 156, as amended (also the Act) pursuant to the
Board’s Decision, 2018 NSUARB 74.
[2] The Board accepts the Crown’s statement that this is not a test case and
that people in Nova Scotia whose homes are physically damaged by the construction of
public works will be required to prove causation in each case, including the same main
issue in this case; that vibrations from the compactor caused damage to their home.
[3] The Board notes proof of causation of damages from the construction of
public works is avoided by the Crown conducting pre-construction surveys of homes near
the construction site.
[4] This case involves issues relating to the statutory interpretation of the
Expropriation Act and what costs may be awarded to a person injuriously affected by the
construction of a public work.
[5] Proof of causation was extensive and expensive.
[6] When the owner is successful in proving liability, should the costs be
significantly or proportionately reduced by the amount of the award for compensation or
settlement; being one of the factors under s. 52(8)(f). The Crown says “yes.” The
Claimant argued for full recovery of the cost to prove liability as they were reasonable
costs necessarily incurred to assert the owners’ claim for the damages they were
awarded.
Document: 262396
-4-
[7] After reading the Act as a whole and giving it a broad and liberal
interpretation to attain its objects and intent, the Board agrees with the Claimants on proof
of liability and with the Crown on proof of quantum of damages.
[8] The Board finds that if the costs of proving causation and liability are
reduced, no claims for injurious affection would be possible, which the Board finds is
contrary to the intent and objects of the Act.
[9] The Act does not expect homeowners near the construction of the public
work to bear the greater burden of $30,000 in damage repairs to their home for the
benefits of the public collectively.
[10] The cost award is part of the Claimants’ compensation.
[11] The Crown has every right to force each and every owner to prove their
claim under the Act, both liability and quantum of damages. However, in relation to the
former, when the claimant has been successful in proving liability, the reasonable costs
necessarily expended are rightfully borne by the Crown.
[12] After taking into consideration all of the provisions of the Act including the
factors under s. 52, the Board awards costs rounded to $260,000 for legal fees,
disbursements (including experts’ reports) and HST.
II FACTS
[13] On behalf of the public and for its benefit, two schools 20 metres from the
Claimants’ property were demolished and a new school was constructed (construction).
[14] Without warning, a pre-construction survey, or vibration monitoring, the
demolition and construction commenced.
Document: 262396
-5-
[15] The Claimants’ home was physically damaged in the amount of $30,000 as
awarded by the Board after they met the tests under the Act of being injuriously affected
by the construction.
[16] The Claimants retained counsel and are responsible to pay all legal fees,
disbursements and expert costs.
[17] The Claimants made four offers of settlement to the Crown. The Crown
offered no money for the injurious affection damages the Claimants experienced.
[18] The main issue in the case was liability.
[19] The Claimants proved on a balance of probabilities that the construction of
the public work, in particular, the vibrations from the compactor, caused the damage to
their home and meeting the test for injurious affection under the Act.
[20] To successfully prove causation was expensive.
[21] In addition to the collection and analysis of information and facts in this
case, Claimant’s counsel and their engineering expert, Mr. Murphy, had to address
numerous major issues raised through the proceeding, as evidence from the Crown was
disclosed and by the Crown’s expert, Mr. Cyr, including those listed below.
1. Reviewing, analyzing, and testifying to Mr. Cyr’s experiment of testing and
collecting vibration amplitude readings at various distances from a similar
compactor in Ontario. Due to the number of variable factors not constant between
the test site and the construction in New Glasgow, including the difference in the
subterranean soil composition in Ontario which was unknown to be the same as
between the school property and the Claimants’ home, the Board ultimately found
this study provided no useful purpose in determining causation in the case.
Document: 262396
-6-
2. Mr. Cyr’s absolute conviction that no damage can occur below the United States
Bureau of Mines (USBM) Z-Curve standard for blasting in the mining industry.
3. Mr. Cyr stating the Z-Curve standard applied to all structures, while Mr. Murphy
testified it applied to standard two-storey constructed homes.
4. Mr. Murphy was extensively cross-examined on the other standards used in
western countries like the United Kingdom, Switzerland, Germany, various states
like California, and cities like Toronto, as Mr. Cyr completely rejected all of these
standards stating they have conceded that their published standards either lacked
scientific validation or were developed to accommodate nuisance [Emphasis
added], Mr. Cyr’s Report of January 18, 2017, p. 3 [Exhibit F-19].
5. Mr. Murphy was also extensively cross-examined on what constitutes “science”, or
“scientific proof, with a review of numerous articles. This included matters such
as the difference between laboratory settings and real-life geological engineering
issues where virtually no two points have the same subterranean composition.
Therefore, vibration amplitudes vary between any three points. Consequently, pre
construction surveys, vibration amplitude monitoring from the foundation of a
structure, and post-construction surveys of damage is also science and provides
useful information in developing standards to protect the public from construction
of public works.
6. After submitting the first expert Reports, the Claimants received from the Crown
the Stantec vibration amplitude monitoring information and results in 529 pages
which were reviewed and analyzed. The Crown’s expert Report over-simplified
Document: 262396
-7-
these results, whereas the Claimants’ expert did an analysis and table accurately
providing the information to the Board.
7. The Claimants’ engineer and counsel were also provided with borehole tests which
were analyzed.
8. Each engineering expert produced three (3) Reports and the Claimants had to
respond to all issues contained in Mr. Cyr’s Reports.
9. The Claimants’ engineer and counsel had to address Mr. Cyr’s adoption of Mr.
Dowding’s studies relating to environmental issues, including upholding the view
that walking down hallways or up stairs, when no dishes vibrate, will cause cracks
in walls and ceilings in a home while vibrations of the home from construction to
the point that dishes move across a table do not.
10. Mr. Murphy’s expertise was challenged throughout the entire proceeding including
in the Crown’s post-hearing submissions.
[22] It was not until near the end of the proceedings that the Crown’s expert,
during his testimony on AprH 18, 2017, acknowledged a number of the factors important
to the issue of causation, including the following:
1. Subterranean conditions vary between two points and affects the vibration
amplitudes at various distances.
2. Numerous factors varied between his test in Ontario and the construction
circumstances in this case, including not using identical construction equipment
and not knowing the subterranean soil composition from his test site and that which
existed between the school property and the Claimants’ home.
Document: 262396
-8-
3. There is a debate within the scientific literature regarding the USBM Z-Curve
standard.
4. Despite his complete disregard of all other standards, Mr. Cyr could not confirm
that all jurisdictions he referenced did not conduct scientific studies when
establishing their standards.
5. He acknowledged that while advocating environmental causes, he did not do any
climate analysis to determine temperature as a cause.
6. For repairs, he had not spoken to the Claimants to discern the repairs in order to
complete that analysis either.
[23] The fees of Patterson Law totaled $237,412.50 [Exhibit F-60]. They
submitted a reduced sum of $232,815 for their Bill of Costs [Exhibit F-56]. At the hearing,
Mr. Pineo deleted a $22.50 charge for an assistant’s time. Thus, the legal fees claimed
are $232,792 rounded. Expert fees are approximately $20,000. With the remaining
disbursements and HST, the Bill of Costs is approximately $300,000.
[24] Other than a few minor items, the Crown accepted that the time records of
counsel, disbursements and expert costs were expended to advance the Claimants’
claims. Whether they were “reasonable”; “incurred"; and the amount of the award should
be considered for all costs, were challenged.
[25] Based upon the Board’s Decision on the damages awarded for injurious
affection, the parties agreed the costs of the damage repairs are $29,182.41 plus $600
for the repairs completed by the Claimants (approximately $30,000) and interest of 6%
per annum. This was agreed to rather than further engaging the costing experts to
provide present-day construction values to complete the repairs. As this resolves the
Document: 262396
-9-
present-day value of the damage repairs, the Claimants are not making any further claim
for Interest under the Act.
[26] The total damages claimed were $196,842.75. The bulk of this was for the
replacement of the foundation at a cost of $111,780. The repairs for replacing the floors
is the remaining sum minus the $10,000 for general damages.
[27] Included in the documents filed with the Board in the cost hearing was an
email from Stephen M. MacKenzie with the Department of Transportation and
Infrastructure Renewal (TIR) who provided the instructions in this case. He stated:
This is the property owner in the vicinity of the recent construction of the New Glasgow School. The home-owners file a claim under section 3(h)ii of the Expropriation Act and have written DOJ [Department of Justice] seeking a settlement.
I will have some discussions with DOJ, however, based on mv review I would like to pursue the matter before the courts, it’s not the issue of the cost to repair its our liability to the claim, this needs to be proven in court.
This is a residential home so I can't wait to see the settlement values on the 13 businessesin Antiaonish. [Emphasis added]
[Exhibit F-57, p. 13]
[28] Counsel for the Claimants stated he is also involved in some of the 13 cases
in Antigonish referenced in the email.
[29] Proof of liability of whether the construction of the public work, including
from its equipment, caused damages to the owners of property in the vicinity of the
construction in these injurious affection cases is easily eliminated by the Province
adopting the accepted practice of conducting pre-construction surveys of peoples’ homes
prior to starting a construction.
[30] The Crown’s engineer, Mr. Cyr, in speaking to his experience and
qualifications, referenced pre-construction inspections as follows:
... In addition to the vibration monitoring, we actually get involved in the, the preconstruction inspections, which has already been spoken of at this board. That basically
Document: 262396
- 10-
just involves inspecting structures prior to, prior to construction or blasting taking place. So, as, as a complement to that, if there is any damage complaint that arises, we will address that as well, so we do the pre-construction inspections, we do the vibration monitoring at the time of the construction, and then we address any damage complaints that may arise.[Emphasis added]
[Transcript, April 18, 2018, p. 996]
On cross-examination, he noted such inspections were good practice:
Q. No. And in this case, you have no way of knowing the quality of the claimants’ recollection of the pre-construction state of the walls?
A. Correct.
Q. And that’s because a pre-construction survey or inspection was not completed?
A. Correct.
Q. And that’s standard, well, that’s a good practice for a constructor, isn’t it?
A. It is. [Emphasis added]
[ibid, p. 1119]
[31] The Claimants’ engineer, Mr. Murphy, stated pre-construction surveys are
good construction practice in his May 31, 2016, Report:
Good construction practice is to perform a survey of structures prior to the commencementof construction in anticipation of potential claims. It is understood that no surveys of the residences were made before the demolition of the existing school and construction of the new school began. [Emphasis added]
[Exhibit F-10, Tab 20, p. 7]
[32] Peter Young, the Site Superintendent with TIR, noted it is prudent practice
to do pre-construction surveys:
Q. You'll agree with me that the best practice for a construction project would be a pre-construction report of the surrounding residences or buildings, wouldn't it be?
A. Correct.
Q. Yeah, and you’re aware that that was not done in this case.
A. I... correct. [Emphasis added]
[Transcript, p. 1465]
Document: 262396
-11 -
[33] The California Department of Transportation (Caltrans) guidelines
recommends both pre-construction and post-construction surveys noting the former
provides the following:
There are various methods that can be used to conduct preconstruction surveys, but all must meet the primary purpose of documenting all the defects and existing damage in the structures concerned. ... [Emphasis added]
[Exhibit F-28, p. 38]
[34] The Claimants have the burden of proof in this cost proceeding.
Ill ISSUE
[35] The main issue in this case is:
1. Under the Expropriation Act, what costs should the Board award to the Claimants?
[36] There are numerous sub-issues raised by the parties that will be discussed
in the Findings section, including to what extent should the amount of the award pursuant
to s. 52(8)(f) be taken into consideration under the circumstances of this case.
[37] However, not all issues are canvassed as not all were pivotal to the Board’s
decision.
IV LEGISLATION INTERPRETATION
[38] The relevant sections of the Expropriation Act are:
Purpose of Act2 (1) It is the intent and purpose of this Act that every person whose land isexpropriated shall be compensated for such expropriation.
Interpretation of Act and service of documents3 (1) In this Act,
(c) “expropriate” means the taking of land without the consent of the owner by an expropriating authority in the exercise of its statutory powers but does not include a reservation under Section 13 of the Public Highways Act or a designation under Section 106 of the Environment Act]
Document: 262396
-12-
(h) “injurious affection” means
(i) where a statutory authority acquires part of the land of anowner,
(A) the reduction in market value thereby caused to the remaining land of the owner by the acquisition or by the construction of the works thereon or by the use of the works thereon or any combination of them, and
(B) such personal and business damages, resulting from the construction or use, or both, of the works as the statutory authority would be liable for if the construction or use were not under the authority of a statute,
(ii) where the statutory authority does not acquire part of the land of an owner,
(A) such reduction in the market value of the land of the owner, and
(B) such personal and business damages, resulting from the construction and not the use of the works by the statutory authority, as the statutory authority would be liable for if the construction were not under the authority of a statute,
and for the purposes of subclause (i), part of the land of an owner shall be deemed to have been acquired where the owner from whom land is acquired retains land contiguous to that acquired or retains land of which the use is enhanced by unified ownership with that acquired;
Injurious affection and loss of access30 (1) A statutory authority shall compensate the owner of land for loss ordamage caused by injurious affection.
Costs52 (1) In this Section, “offer to settle” means a written offer of an amount in fullcompensation for land expropriated or for injurious affection caused to an owner, or for both, made by an expropriating authority to the owner at least fourteen days prior to the date of a hearing by the Board that is held to determine the amount of the compensation.
(2) Subject to subsection (5), an owner whose interest in land is expropriated or injuriously affected is entitled to be paid the reasonable costs necessarily incurred bythe owner for the purpose of asserting a claim for compensation. [Emphasis added]
(7) The costs payable to the owner are
(a) those costs referred to in subsection (2), (3), (4) or (5); or
(b) where the Governor in Council prescribes a schedule of costs, the amounts prescribed in the schedule and not the costs referred to in clause (a).
Document: 262396
-13-
(8) In a determination of costs pursuant to subsection (2), (3), (4) or (5), the following shall be taken into account:
(a) the number and complexity of the issues;
(b) the conduct of any party that tended to shorten or unnecessarily lengthen the duration of the proceeding;
(c) any step in the proceeding that was improper, vexatious, prolix or unnecessary;
(d) the reasonableness and relevance of appraisal and other expert reports, including the cost of the reports;
(e) the skill, labour and responsibility involved;
(f) the amount of the award or settlement;
(g) any other matter relevant to the question of costs.
[39] The Interpretation Act of Nova Scotia, R.S., c. 235, applies to every statute
in the Province unless there is a contrary intention (s. 6(1)) which does not exist in this
case. Section 9 provides that the legislation is to be interpreted as always speaking and
applied to the circumstances as they arise to give effect to every enactment and every
part thereof according to its spirit, true intent and meaning (s. 9(1)). Each statute is
deemed to be remedial and interpreted to ensure that its objects are attained taking into
consideration various matters (s. 9(5)). It reads:
Interpretation of words and generally9 (5) Every enactment shall be deemed remedial and interpreted to insure theattainment of its objects by considering among other matters
(a) the occasion and necessity for the enactment;
(b) the circumstances existing at the time it was passed;
(c) the mischief to be remedied;
(d) the object to be attained;
(e) the former law, including other enactments upon the same or similar subjects;
(f) the consequences of a particular interpretation; and
(g) the history of legislation on the subject.
Document: 262396
-14-
[40] As noted by the Board on many occasions, s. 9(5) is similar to the common
law test of legislation interpretation of requiring the Board to read the Act as a whole and
giving it a broad and liberal interpretation to ensure its objects and intent are attained.
The Board is permitted under the Interpretation Act to include this judicial rule of
construction as it is not inconsistent with this Act pursuant to s. 6(2).
V ARGUMENTS
[41] Before summarizing the arguments of the parties, the Board shall review
some of the more important items for which there is agreement.
1. Parties Agree
[42] The Claimants have the burden of proving their claims.
[43] The Crown is entitled to put the Claimants to the burden of proving liability
for their claims.
[44] The Crown is under no obligation in an injurious affection matter to offer a
settlement.
[45] The parties agree to the above Section regarding the legislation and
principles applicable to legislation interpretation.
[46] Costs are dependent on the specific facts and circumstances of each
individual case.
[47] Costs form part of the compensation award under the Expropriation Act.
[48] The Board has discretion under the Expropriation Act in awarding cost to
the Claimants.
Document: 262396
-15-
[49] Section 52 equally applies to both an expropriation where lands have been
taken and to injurious affection.
[50] Section 52(8) does not mandate the weight to be given to the factors the
Board shall consider; varying weights can be given to the factors and will be dependent
upon the facts and circumstances of each case.
[51] There is no presumption for compensation under the Expropriation Act for
injurious affection as there is when lands are taken, as noted by the Supreme Court of
Canada in Toronto Area Transit Operating Authority v. Dell Holdings Ltd., [1997] 1 S.C.R.
32 (Dell).
[52] The Claimants are only entitled to the “reasonable costs necessarily
incurred by the owner[s] for the purpose of asserting a claim for compensation”.
[53] Costs in expropriation matters are different from costs in civil litigation
before the Courts.
[54] The Board has the ability to grant costs greater than the award for damages.
[55] In general, the parties agree on the application of the factors in s. 52(8)(a),
(b), (c) and (e).
2. Claimants’ Arguments
[56] The Claimants argued they are entitled to be fully compensated for the legal
fees, disbursements and experts’ reports they incurred as a result of having to prove
causation for the damages they experienced as a result of the construction of the public
work.
Document: 262396
-16-
[57] The intent and purpose of the Expropriation Act is to compensate owners in
full who have been injuriously affected by a public work without the taking of lands, citing
s. 2(1), 30(1) and 52. They emphasize this affects access to justice. If the Board does
not provide compensation on costs, then the Crown will be in a position to be able to
starve out landowners, contrary to the intent and provisions of the Expropriation Act. The
access to justice is particularly important in Nova Scotia because there is no requirement
for a statutory offer payment to offset some of the costs of proving the owners’ claims.
[58] The Claimants relied on the following three Supreme Court of Canada
cases, which provided solicitor-client costs to the Claimants in expropriation and
expropriation-type litigation, being: Antrim Truck Centre Ltd v. Ontario (Transportation),
2013 S.C.C. 13 (Antrim)] Hill v. Nova Scotia (Attorney General) (1997) 155 D.L.R. (4th)
767 (Hill)] and Smith v. Alliance Pipeline Limited, 2011 S.C.C. 7 (Smith).
[59] Antrim was an injurious affection case regarding private nuisance like the
present case:
[57] ...In this matter arising under the Expropriations Act, I would exercise discretionand award the appellant its costs in this Court, including the application for leave to appeal, on a solicitor and client basis.
[60] In the Hill case, the Court awarded solicitor-client costs throughout:
[1] SOPINKA J.: — The appellants (applicants) have brought a motion seeking a declaration that the "appropiate scale of costs" referred to in the reasons of the court should be solicitor-and-client costs. There can be no doubt that this action arose as a result of the expropriation of an interest in land. In accordance with the provisions of sections 35 and 52 of the Nova Scotia Expropriation Act, R.S.N.S. 1989, c. 156 (prior to recent amendments), the appellants (applicants) are entitled to be paid their solicitor-and-client costs throughout these proceedings.
[2] The order will therefore go that the appellants (applicants) are entitled to their costs on a solicitor-and-client scale throughout these proceedings including their costs of this application. [Emphasis added]
[61] The Claimants argued Mr. Mackenzie's email demonstrated their matter
was to be used by the Crown as a test case. At the end of paragraph 3, Mr. MacKenzie
Document: 262396
-17-
was not concerned about paying damages, but rather liability, and wanted it proven in
court. The Claimants emphasize one has to read paragraph 3 in conjunction with the last
paragraph in which Mr. MacKenzie referenced the other 13 cases the Crown has in
Antigonish.
[62] The Claimants’ counsel argued the importance of a test case may be
considered under s. 52(8)(g) of the Act. Specifically, they referenced the Smith case.
Although the case involved the taking of land under the National Energy Board Act
(NEBA) for a pipeline, the Supreme Court of Canada refers to it being akin to expropriation
legislation.
[63] In the Smith case, Alliance Pipeline Limited (Alliance) received approval
from the National Energy Board to build a pipeline across Smith’s farmland. Pursuant to
the NEBA the parties entered into an easement agreement which provided compensation
for the expropriated lands. Pursuant to that agreement, Alliance had a right-of-way over
Smith’s lands. When Alliance failed to reclaim lands in a timely manner Mr. Smith spread
a thin layer of manure on the land and asked Alliance to pay the bill of approximately
$9,000. Alliance refused.
[64] The S.C.C. noted that although the NEBA provides for an arbitration
committee to expedite matters, this case went through two arbitration committee
hearings, one Court of Queens Bench hearing, one judicial review, appellant review, and
thousands of dollars later, to the Supreme Court of Canada.
[65] At paragraph 47, the majority decision (eight to one) noted the NEBA
entitled Mr. Smith to “a legal appraisal and other costs determined by the committee and
Document: 262396
-18-
recently incurred by [Mr. Smith in asserting] his claim for compensation”. The Claimants
argued this authorization section has similar language to that of the Expropriation Act.
[66] The goal of the Act was for complete indemnification (para. 50).
[67] Further, s. 75 provides “shall make full compensation...for all damage
sustained” by the expropriated owner.
[68] The Supreme Court of Canada adopted the Thoreson v. Alberta (Minister
of Infrastructure) 2007 A.B.C.A. 272 comments that costs are part of the expropriation
award (plot) and notes Nova Scotia adopted a similar approach:
[68] Courts and expropriation tribunals in Nova Scotia and Ontario have adopted the same approach. In Town ofMahone Bay v. Lohnes (1983), 59 N.S.R. (2d) 68 (S.C.(T.D.)), in rejecting the Town’s claim of title to property it otherwise intended to expropriate, Glube C.J.T.D. underlined the distinction between litigation costs in the civil proceedings before her and costs before the expropriation tribunal. Her order for judgment read in part:
The plaintiff’s action is dismissed with costs to the defendants, Philip L. K.Lohnes’ Market Limited, to be taxed on a party and party basis, provided, however. that this award of party and party costs shall in no wav preclude the defendants.Philip L. K. Lohnes and Lohnes’ Market Limited, from seeking compensationbefore the Expropriation Compensation Board, pursuant to the Expropriation Act,1973, for costs over and above the party and party costs awarded herein: andfurther provided that the defendants, Philip L. K. Lohnes and Lohnes’ Market Limited, shall have all reasonable disbursements paid with respect to these proceedings. [Cited in Town of Mahone Bay v. Lohnes (1983), 59 N.S.R. (2d) 65 (S.C.(A.D.)), at para. 12; emphasis added.]
An appeal of this decision was dismissed with costs.
[69] The Supreme Court of Canada awarded Smith’s costs throughout on a
solicitor-client basis for reasons that are consistent with the Canadian jurisprudence and
doctrine; meets the objective and purpose of the Act; justice can only be done by a
complete indemnification of costs; and as a test case, Mr. Smith should not bear such
costs:
[73] This award is justified for four reasons.
[74] First, in the context of modern expropriation law, where statutes authorize awards of “aH legal, appraisal and other costs”, Canadian jurisprudence and doctrine demonstrate that “costs on a solicitor-and-client basis should generally be given” (Bayview Builder’s Supply (1972) Ltd. v. British Columbia (Minister of Transportation & Highways), 1999
Document: 262396
-19-
BCCA 320 (CanLII), 67 B.C.L.R. (3d) 312, at para. 3, citing Todd, at p. 526; see also Holdom v. British Columbia Transit, 2006 BCCA 488 (CanLII), 58 B.C.L.R. (4th) 207, at para. 11, and Hill v. Nova Scotia (Attorney General) (No. 2) (1997), 1997 CanLII 17810 (SCC), 155 D.L.R. (4th) 767 (S.C.C.)). [Emphasis in original]
[75] Second, awarding costs on a solicitor-client basis accords well with the object and purpose of the NEBA, as reflected in s. 75.
[76] Third, this is a case in which “justice can only be done by a complete indemnification for costs” (Foulis v. Robinson (1978), 1978 CanLI11307 (ON CA), 92 D.L.R.(3d) 134 (Ont. C.A.), at p. 142). Only this type of award can indemnify Mr. Smith as best one can for the inordinate amount of money — to say nothing of time — he has had to invest in what should have been an expeditious process. [Emphasis added]
[77] Lastly, Mr. Smith should not be made to bear the costs of what is clearly a test case for the respondent. Mr. Justice Gill’s appointment to the bench ended 19 other arbitration proceedings against Alliance before the First Committee. Mr. Smith, on the other hand, has sought nothing more than to resolve a decade-old disagreement over reclamation work worth a few thousand dollars. [Emphasis added]
[70] The Claimants argued that as this was a test case, they should not bear the
legal costs of proving it.
[71] Furthermore, there was difficulty in proving liability in this case and that
“justice would not be done” if a proportional share or a percentage of the award applied
to liability.
[72] The Claimants argued there is a distinct difference in the proceedings when
lands are taken versus injurious affection. In the former, liability is determined. The
owners have lost their land; they no longer have title. Consequently, providing damages
are the proceedings. In injurious affection cases where no lands are taken, owners not
only have to prove their damages, but they must also prove liability.
[73] The Claimants had no choice but to go through a full hearing and prove
liability, the costs of which were significant and substantial. Although the Claimants are
liable to the proof thereof, upon being successful, they are entitled to their costs.
Document: 262396
-20-
[74] Furthermore, in PEV International Research & Development Incorporated,
2017 NSUARB 88, Board Member Clarke noted that the overarching principle in s. 52 is
fairness to the landowners facing expropriation.
[75] In Rebuttal, the Claimants argued that even under the Tariffs in Nova Scotia
civil litigation cases, as argued by the Crown below, the Court has the discretion to
increase the amount beyond the standard tariff for various reasons including the actual
legal fees to prove the case and can award solicitor-client or substantial contribution
costs.
3. The Crown
[76] The Crown argued this was not a test case. It disagreed with the Claimants’
interpretation of Mr. MacKenzie’s email. Rather, the Crown stated the Re Visser, 2013
NSUARB 180, case had already determined vibrations can cause damage to structures.
Therefore, this was not a test case.
[77] The Crown’s main argument is that the Board must determine the proper
interpretation of s. 52, whether reasonable costs necessarily incurred applies to any claim
or only to reasonable claims. The Crown argued the proper interpretation is that it only
applies to reasonable claims, otherwise the amount of the award, to be considered under
s. 52(8)(f) has no meaning. There must be some rigor to the process. If not, there is no
balance by owners in considering their claims as against the costs of bringing those
claims.
Document: 262396
-21 -
[78] The Crown argued the Board must first dismiss from its mind that there is a
requirement for full compensation for those who are injuriously affected with no lands
taken.
[79] The Crown argued the Supreme Court of Canada, followed by the Nova
Scotia Court of Appeal, has found full compensation and the presumption in favour of
compensation only apply to those circumstances where land has been taken. It does not
apply to injurious affection when no lands are taken. In Mariner Real Estate Ltd. v. Nova
Scotia (Attorney General) (1999), 178 N.S.R. 2d 294, the Nova Scotia Court of Appeal
summarizes Cory, J.’s review of this distinction in Dell and quoting Wilson, J. as follows:
In the Queen in the Right of British Columbia v. Tener et al., [185] 1 S.C.R. 533, stating at para. 77 the following:
77 As noted by Cory, J., the common law recognized this distinction. Wilson, J. described it in her concurring reasons in Tener at p. 547-548:
Where the land has been taken the statute will be construed in light of a presumption in favour of compensation (see Todd, The Law of Expropriation and Compensation in Canada, pp. 32-33) but no such presumption exists in the case of injurious affection where no land has been taken (see Todd, supra, at pp. 292 et seq.; Challies, the Law of Expropriation (2nd ed.), pp. 132 et seq.) In such a case the right to compensation has been severely circumscribed by the courts (see the Queen v. Loiselle, ‘1962] S.C.R. 624) and, although the policy considerations reflected in the restrictive approach to recovery for injurious affection simpliciter have been seriously questioned (see Todd, “the Mystique of Injurious Affection in the Law of Expropriation” (1967),U.B.C.L. Rev. - C. de D. 125), the concern over the indeterminate scope of the liability remains if recovery is permitted for any injury to private land resulting from the non-negligent, authorized acts of public authorities [Emphasis added]
[80] The Crown also stated the purpose of the Expropriation Act to provide for
full compensation under s. 2(1) solely references an “expropriation” which is defined in
the Expropriation Act as “to the taking of land ...” (s. 3(c)). These read:
2(1) It is the intent and purpose of this Act that every person whose land is expropriated shall be compensated for such expropriation. [Emphasis added]
3(c) "expropriate" means the taking of land without the consent of the owner by an expropriating authority in the exercise of its statutory powers but does not include a
Document: 262396
-22-
reservation under Section 13 of the Public Highways Act or a designation under Section 106 of the Environment Act; [Emphasis added]
[81] In Reply, the Claimants disagreed. In Mariner, the question was whether
the company qualified under the Expropriation Act, not what compensation an owner is
due once s/he is rightly within the Act. The Court found the Expropriation Act did not
apply to the case.
[82] The Crown’s main argument was the importance and significance of
s.52(8)(f) and argued reasonable costs must take into consideration the amount of the
award. The Crown argued the findings in PEV are the correct interpretation and/or
application to be provided in this case, in particular, the following:
[123] The Board agrees that a hindsight view may not be the most appropriate test of what is reasonably necessary; however, from a practical perspective, the Board considers that, as it is not possible to prove a claim for costs at the hearing on the merits, the Board should not be blind to the history of the claim and results achieved.
[131 ] The fact that the amount of the award or settlement is a separate factor listed in s.52(8)(f) of the Act leads the Board to conclude that it must be given appropriate weight....
[132] The amount of costs sought by PEV significantly exceeds the compensation award, and the Board concludes that this is a case where the costs will exceed the compensation award. ...
[83] When owners only receive 15% of what they have claimed, they should not
receive full compensation for asserting their claims. The damage award is 10% of costs
and it would be unreasonable to compensate for their full costs.
[84] Section 52(8)(f) applies to both proof of liability and quantum of damages.
[85] Although the Crown acknowledges costs in expropriation cases are not the
same as civil litigation proceedings, it provided the tariffs under the Civil Procedure Rules
to show what would be reasonable costs for advancing a claim of $200,000. The tariff
provides costs in the vicinity of approximately $45,000 to $50,000.
Document: 262396
-23-
[86] The Crown also argued “solicitor-client” costs does not always mean 100%
of the lawyer’s time, citing the following BC cases, Campbell River Woodworkers’ &
Builders’ Supply (1996) Ltd. v. British Columbia (Minister of Transportation & Highways),
2004 BCCA 27 and Holdom v. British Columbia Transit, 2006 BCCA 488.
[87] The Crown would not state what it considers to be reasonable costs in the
circumstances of this case, but re-emphasized the importance of s. 52(8)(f).
[88] The Crown argued that in this individual case, it is not the Board’s job to
consider access to justice or the precedential implications this decision may have on other
cases, even under subsection s. 52(8)(g). This is distinguished from the Board’s
jurisdiction to consider the consequences of the Crown’s interpretation of the legislation
under s. 9 (5), which the Board has every right to do. In the latter, the consequences of
a specific interpretation may encompass access to justice issues.
[89] Other arguments of the parties are addressed in the Findings section.
[90] The Crown argued that all of the cases advanced by the Claimants are in
situations where the land has been expropriated as is the case with PEV.
VI FINDINGS
1. General
[91] In the Board’s determination of the costs to be awarded in this case under
the Expropriation Act, it is important to note that at this stage the Claimants have proven
their home incurred damages in the amount of approximately $30,000 as a result of the
construction of a public work and they have satisfied the requirements for compensation
for injurious affection under the Act.
Document: 262396
-24-
[92] Pursuant to s. 30(1) of the Expropriation Act the Claimants are entitled to
compensation in full for these damages. It states:
A statutory authority shall compensate the owner of land for loss or damage caused by injurious affection. [Emphasis added]
[93] This section requires the Crown to provide full compensation. There is
nothing in this section which states the owners are to receive anything less than their full
damages.
[94] In the Antrim decision, referencing a similar section in the Ontario
Expropriation Act, the Supreme Court of Canada notes the right to compensation for
injurious affection where no lands are taken as follows:
[5] ... Where none of the claimant’s land is expropriated, the Act provides a right tocompensation for “such reduction in the market value of the land of the owner, and...such personal and business damages, resulting from the construction and not the use of the works by the statutory authority, as the statutory authority would be liable for if the construction were not under the authority of a statute”: s.1 (1). [Emphasis added]
[95] Pursuant to s. 52(2) of the Expropriation Act, the Claimants are entitled to,
as part of their compensation, the reasonable costs necessarily incurred for the purpose
of asserting their claim.
[96] The central issue in this case is how should the Board apply “the amount of
the award” under s. 52(8)(f) in determining costs that meet the objects of the Expropriation
Act? The Board has read the Act as a whole and given it a broad and liberal interpretation
in its determination of costs in this case.
[97] In general, the Board concurs with the Claimants on their interpretation of
the statute and the significance between proof of liability and damages in injurious
affections cases where no lands are taken for the reasons set out below. The Board finds
the Crown’s approach is similar to civil litigation principles for costs which does not meet
the objects of the Expropriation Act Furthermore, if adopted, the consequences of such
Document: 262396
-25-
an interpretation is that virtually no one could afford to bring a claim for the damages they
suffered from the construction of the public work.
[98] The Crown undertakes on our behalf, collectively as a community, the
construction of numerous public works from roads to buildings like schools. If a person
is injuriously affected such that their home has been damaged in the amount of $30,000,
as noted in the Supreme Court of Canada in Antrim, paragraph 2, as a community we do
not expect them to bear the costs of $30,000 of repairs to their home on their own without
compensation, see also s. 30(1). As part of the owners’ compensation we will collectively
also pay their reasonable costs necessarily incurred to assert that claim (s. 52).
[99] In injurious affection cases where no land is taken, the claimant’s cost may
include proof of liability and quantum of damages, whereas when lands are taken, only
the latter is required; that is, liability of harm need not be proven, the owner has lost her/his
land. The Board finds that under the facts and circumstances of this particular case, the
amount of the award is applicable to the latter, as in the other expropriation cases where
lands are taken. The question of how the award amount should apply to issues of proof
of liability is central in this case.
[100] The Board in general finds the amount of the award does not apply to liability
costs as it would prevent owners from recovering the damages to their home caused by
the construction of a public work, contrary to the objects of the Expropriation Act. The
Board finds support for this in the findings of the Supreme Court of Canada.
[101] As determined by the Supreme Court of Canada in the Smith case, the
Board finds that to the extent this case was a test case on liability, the Claimants should
not bear the costs of proof in this matter.
Document: 262396
-26-
[102] The significance of the Crown’s interpretation encouraged upon the Board
is emphasized by the facts of this case.
[103] Without the Crown notifying the claimants about the commencement of the
construction, or following industry practices of conducting pre-construction surveys of
people’s homes and/or continuous vibration monitoring, proving liability for an owner
whose home has been damaged, was extremely expensive and time consuming. This is
especially the case when the Crown raises numerous issues, as outlined in the Facts
Section above, including what constitutes “science” and “scientific proof.”
[104] This case is not like proving a driver went through a stop sign and caused
the accident. Rather, the Board finds it was more akin to proof in a product’s liability case
or that humans impact climate change.
[105] This was further exacerbated by the Crown not collecting the relevant facts
above. The fewer facts the Crown collects through good practice standards, such as
preconstruction surveys and vibration monitoring, the more expensive it is for an owner
to prove liability in injurious affection cases where they have suffered damages from the
construction of public works and the machinery it uses.
[106] The Board notes a mere construction survey would virtually eliminate proof
of liability in this type of case.
[107] How should the award of damage factor under s. 52(8)(f) apply to this case?
The Crown argued the Board cannot separate between the two facets of the case, liability
and damages, but rather must factor in and apply the damage award to both. The Board
disagrees.
Document: 262396
-27-
[108] The Board finds that the amount of the award should apply to the damages
assessment, as in the expropriation cases where lands are taken, such as in the PEV
case. In this case, the Board finds it should not apply the amount of the award to the
legal fees expended to prove liability for the $30,000 of damages to the owners’ home.
To do otherwise, would, in the Board’s opinion, prevent virtually everyone from bringing
a claim for injurious affection.
[109] While recognizing costs awarded under the Expropriation Act are not the
same as in civil cases, the Crown argued the proper interpretation of reasonable costs is
what is necessary to assert “reasonable claims.” The amount of the award versus the
damages claimed should reduce all costs of the case for proof of liability and damages.
The Crown argued reasonable claims must be subject to the similar rigors of civil litigation
where a claimant must balance the value of their damage claim as against the cost to
prove that claim. The Board should only provide costs for “reasonable claims”; not any
claim.
[110] The Board finds the Expropriation Act provides the opposite approach than
that espoused by the Crown. The Boards finds the Crown’s argument misses the fact
that proof of liability from the construction of a public work, including the construction
equipment such as a vibrating compactor, is not dissimilar to proof in products liability
cases. It is extremely expensive to make any claim.
[111] The Board notes Mr. Smith had a claim of $9,000. If he was subject to the
interpretation of the Crown, he could not have advanced his claim. The Supreme Court
of Canada gave him solicitor-client costs throughout noting that it was the only type of
Document: 262396
-28-
costs award that could indemnify him as best as one could for the inordinate amount of
money, not including his time, that he had to invest, (para 76).
[112] The Board finds that for the liability portion of proof, under the Expropriation
Act, the Board begins with the claim the owners succeeded in proving they suffered
injurious affection as defined by the Act. This was $30,000 of damages to the Claimants’
home. The Board notes that for many people, in particular, those on fixed income, this is
not a small sum. It is also a significant percentage of the value of one’s home, as
assessed, in particular, in rural areas. In other words, it is not an amount people should
be expected to bear without compensation.
[113] Under s. 52(2) the Board is then to determine what were the reasonable
costs necessarily incurred by the owners for the purpose of asserting that successful
claim.
[114] The Board finds that in this case the owners’ reasonable costs necessarily
incurred to assert liability to prove the $30,000 in damages to their home constituted 85%
of the legal time and disbursements incurred, except for their engineering expert which
the Board finds should be compensated in full.
[115] The Board finds that justice can only be done in this case when the
Claimants are provided with a full indemnification of these reasonable costs necessarily
incurred to assert their claim for the $30,000 damages and repairs, as noted by the
Supreme Court of Canada in Smith at paragraph 76.
[116] Furthermore, the Board finds this award for costs meets the object and
purpose of the Act, similar to the NEBA, as noted by the Supreme Court of Canada in
Smith at paragraph 75.
Document: 262396
-29-
[117] The true implications of the Crown’s interpretation under s. 9(5)(f) of the
Interpretation Act, is found when one accepts the Crown’s positions that this was not a
test case. The Crown stated it already had its answer from the Visser case that
construction activities can cause vibrations which can damage people’s homes. This
means that in each and every case where an owner in our communities is near the
construction of a public work, and their home is damaged in the amount of $30,000, they
may be subject to the same proof of liability as was required in this case. If the reasonable
costs necessarily incurred to prove liability, on a balance of probability, in each case is
$225,000 and this is to be reduced by the amount of the award for damages the Board
finds this will virtually eliminate anyone injuriously affected by the construction from
bringing their case forward. The Board finds that not only does this not meet the objects
and intent of the Expropriation Act, but it is completely contrary to the Act.
[118] The Expropriation Act of Nova Scotia provides that people in our
communities who are harmed by the construction of public works and meet the test of
injurious affection under the Act shall receive compensation for their damages. That full
compensation includes costs of proof of liability. The reasonableness applies to what
was required for them to assert their claim.
[119] Another implication of having the amount of the award apply to proof of
liability is that the less the Crown does in adopting good construction practices in the
collection of necessary information through pre-construction surveys and vibration
monitoring, the harder and more expensive it is for a homeowner to prove liability. This
is also contrary to the object of the Act.
Document: 262396
-30-
[120] The Board finds that the reasonable costs are not to be interpreted by
adding into s. 52(2) the words “reasonable claims,” but rather adopting the standard of
the Supreme Court of Canada in the Antrim case of how we determine the
reasonableness of one’s damages for injurious affection in private nuisance as exists in
this case. That test is summarized in paragraph 2 as follows:
... The balance is appropriately struck by answering the question whether, in all of the circumstances, the individual claimant has shouldered a greater share of the burden of construction than it would be reasonable to expect individuals to bear without compensation.
[121] The Board finds the Claimants should not bear the reasonable costs they
necessarily incurred to prove liability for their successful claim for damages, when they
have been injuriously affected by the construction of the public work. To shoulder any
portion of those costs is a greater share of the burden of the construction of this public
work.
[122] The Crown argued the granting of solicitor-client costs does not necessarily
mean full indemnification and cited the British Columbia cases, Campbell and Holdom.
First, the Board finds the correct interpretation of the Expropriation Act in Nova Scotia is
full indemnification for those reasonable costs necessarily incurred to assert an owner’s
claim. Furthermore, the Board finds the Supreme Court of Canada has granted solicitor-
client costs to mean full indemnification as noted in the Smith case at paragraphs 72 and
76.
[123] The Board finds the damages not awarded and the quantum of damages
constituted only 15% of the legal fees and disbursements involved in this case. The Board
finds the amount of the award applies to this portion of the costs. The Board is to balance
a number of factors, most of which are not at issue in this case.
Document: 262396
-31 -
[124] The Board finds in relation to the claim for the foundation there were no fees
for the repair costs estimate. The Board finds it was reasonable for the Claimants to
pursue the replacement of their foundation up to May 31, 2016, when their expert, Mr.
Murphy, indicated there was no structural damage to their foundation and he was of the
opinion that it did not have to be replaced. The Board finds legal fees and disbursements
asserted after that date for that damage should not be included while also noting there
appears to be little time and money expended on that damage after that date.
[125] Similarly, although the costs for the other claims of replacing the floors and
general damages took little time, the Board will reduce the costs award for those claims.
[126] The Board finds that taking into consideration all of the factors at issue in
s.52(8) and for the reasons noted above, the Board would reduce the remaining 15% of
the legal fees and disbursements by 60%, subject to the Specific Costs below.
2. Specific Costs Issues
[127] The Crown has made a few comments in relation to the time records of
Patterson Law and some of the disbursements which the Board will now consider.
[128] For disbursements, the SPECS accounts for Mr. Caines’ Report and time
totalled approximately $10,000. The Crown argued that a review of the time records for
the three accounts there appears to be duplication of time and not all of it should be
permitted. The Board agrees.
Document: 262396
-32-
The Board finds the second invoice is denied in total and rounds the costs for SPECS to
$7,000.
[129] The Crown argued against the disbursements costs for service of
subpoenas upon the witnesses who do not give testimony and re-service of the
subpoenas for the continuation of the hearings on those who did testify.
[130] The Board accepts the initial service of all witnesses, including those that
were not ultimately called, because at the commencement of a case all potential
witnesses are served with subpoenas. As the case progresses, witnesses may or may
not be called. These are reasonable costs necessarily incurred to advance the claim.
The Board, however, does not find the second service was required and deletes that
account. The Board sets the amount of $609.10 as the proper services fees for Central
Nova Enforcement and $372.46 for Direct Document Service.
[131] As for the time records of Patterson Law, Mr. Pineo acknowledged that one
of the time entries was an assistant. The value of $22.50 was removed from their initial
Bill of Costs as described above.
[132] The Crown raised issues in relation to time of Mr. James on some entries,
noting that two senior counsel should not be required or compensated. Mr. Pineo stated
he was not involved with the case at the time and, therefore, there were not two senior
counsel on the file. Furthermore, no time was billed for Mr. James. The Board finds no
deduction is warranted.
[133] Concerns were raised about the legal time entries relating to the number of
engineering experts in this case. Considering the issues in this case, the Board finds the
legal costs of securing the correct engineering expert were reasonable and necessarily
Document: 262396
-33-
incurred to advance the Claimants’ case. The Board, however, agrees with the Crown
that the legal fees regarding the subterranean soils test conducted by Pat Griggs should
not be included and, therefore, the Board reduces the legal fees by $1,500 to
acknowledge duplication of that component of the time records. The Board notes,
however, there was no expert fees submitted on behalf of Mr. Griggs. This solely relates
to the legal time.
3. Costs for the Hearing
[134] Paul Niefer attended with Mr. Pineo, but no amount was claimed for his
attendance. Mr. Pineo requested five hours for preparation and five hours for the hearing
for a total of 10 hours. At his current hourly rate, the amount is $3,500. The Board notes
counsel’s time will continue to review this Decision and discussions with its clients and,
therefore, finds it appropriate to award an additional three hours, increasing the legal fees
to $4,550 plus HST.
4. Costs Incurred
[135] Patterson Law filed with the Board its Retainer Agreement with the
Claimants in full without redactions stating that if this costs award is appealed, the full
context of the Agreement will be available to not only this Board, but the Court of Appeal,
in addressing the issues raised by the Crown.
[136] The Agreement is dated June 4, 2013, and was filed as Exhibit F-58.
[137] The Claimants retained Patterson Law to provide legal representation.
Fees are the time spent on their file and charged at their hourly rates. Counsel will
Document: 262396
-34-
perform their work on the file in the most economically efficient manner and, therefore,
the client will be charged the rates for junior lawyers, article clerks and paralegals who
will be delegated work to achieve that goal.
[138] The current hourly rates are specified for senior and junior counsel which
will be reviewed annually and, if changed, shall form part of the Agreement.
[139] In addition to the legal fees, the Claimants are also responsible for all
expenses paid as disbursements.
[140] The Claimants are fully responsible for retaining and directly paying all
experts’ accounts.
[141] The billing for the legal services and disbursements will not occur until the
matter is completed, which Mr. Pineo stated is after costs are determined.
[142] If the Claimants were successful in achieving recovery, then they bear the
full costs of the legal services and disbursements provided on their behalf.
[143] If they had been unsuccessful in obtaining any recovery, Patterson Law
would not charge the Claimants for their services.
[144] As the Claimants were successful, they are legally bound by this Agreement
to pay the full services of Patterson Law, disbursements, and HST.
[145] Initially, there was a question of whether this was a contingency fee
arrangement because the computer printout of the time records submitted in the Bill of
Costs referenced at the top of the page “expropriation-contingency”. The Crown
requested the full copy of the Agreement and initially indicated to the Board that it would
be arguing the Neil v. British Columbia, 1992 47 L.C.R. 112, case.
Document: 262396
-35-
[146] Mr. Pineo explained the firm’s computer system has only two billing
categories; those billed on a regular monthly basis and those held to be billed at the end
of the file. The computer program calls the latter category “contingency”. Mr. Pineo
argued it is not a contingency fee Agreement. The Board finds that under the Agreement
between Patterson Law and the Claimants, the Claimants are 100% responsible for the
legal fees expended by Patterson Law, the disbursements and expert fees, and HST
subject of course to the Claimants’ rights to challenge costs as between themselves and
their counsel. The latter is separate and apart from the Board’s jurisdiction and is not an
issue to which the Crown has any right to participate.
[147] The Crown, ultimately, did not pursue the Neil case. The Board finds it is
completely distinguishable even if one were to find the Agreement is a contingency fee
agreement, which the Board does not. In the Neil case, the claimants actually sought
from the expropriating authority the fees to be paid by the Claimants under a contingency
fee agreement. It was rightly refused by the Court as not being reasonable costs
necessarily incurred to advance the owner’s claim. That is not the factual situation in this
case. First, there is no contingency fee agreement and secondly, the Claimants are not
seeking their costs from the Board on a contingency fee basis.
[148] The Crown’s main argument is the legal fees and disbursements have not
been “incurred” as they have not been billed and paid to date. The Board finds “incurred”
under the Expropriation Act should not be given such a narrow interpretation. Rather,
“incurred” encompasses those costs an owner is responsible to pay. The Bill of Costs,
as Mr. Pineo explained, will be billed at the end of the matter and the Claimants are
responsible for them under the Agreement. The Board finds the correct interpretation of
Document: 262396
-36-
the Agreement is that the Claimants are fully responsible for all legal time in the Claimants’
Bill of Costs and the disbursements and, therefore, have incurred those costs as required
under s. 52(2) of the Expropriation Act.
[150] In considering the consequence of the interpretation advanced by the
Crown, would require owners to obtain bridge financing to pay their costs before the costs
hearing or before their case is concluded. As described by Mr. Pineo, the Board finds
this would “starve out” people within our communities who have been injuriously affected
by the construction of public works preventing them from receiving compensation for their
damages. The Board finds this is contrary to the objects and intent of the Expropriation
Act.
VII COSTS AWARD
[151] This case involves the proper interpretation of costs under the Expropriation
Act for owners who have suffered damages to their home from the construction of public
works where the costs of approving liability are extremely expensive and time consuming
akin to proof required in product liability cases.
[152] The Board has read the Act as a whole and given it a broad and liberal
interpretation to ensure the objects of the statute have been attained in this cost
proceeding.
[153] The Board finds the Claimants were successful in proving that $30,000
worth of damage was done to their home caused by the construction of the public work.
The Board finds the reasonable costs necessarily incurred for the purpose of asserting
this claim was 85% of the Bill of Costs, as amended.
Document: 262396
-37-
[153] For all of the reasons set out above, after taking into consideration all of the
facts and circumstances of this case, including the factors in s. 52(8) and, in particular,
the amount of the damages award, the Board sets the costs for legal fees, disbursements,
(including experts’ fees), and HST at $260,000.
[154] An Order will issue accordingly.
DATED at Halifax, Nova Scotfar day of April, 2018.
Document: 262396